Suskin & Hall: Responding to the Crisis–Reengineering Court Governance and Structure

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Responding to the CrisisReengineering Court Governance and Structure

DANIEL J. HALL* & LEE SUSKIN**

our years of tough economic times and resulting state court budget cuts have had a cumulative negative effect on those who utilize our

state courts. A majority of states have left judgeships vacant, have had to lay off staff, and leave clerical and judicial support positions unfilled.1 State trial courts have reduced operating hours.2 These budget reductions are impacting the ability of courts to hear and dispose of cases in a timely manner; to keep accurate, timely records; and to serve those seeking the just resolution of their disputes.3

Several states are responding to budget crises by attempting to dramatically redesign, or re-engineer, their state court systems with the main goals of decreasing costs and increasing quality.4 These efforts involve significantly altering court governance and structure in ways that

would normally be both unprecedented and infeasible. Agreement on high-level principles, which establish the goals and values of the projects, is central to identifying and securing support for dramatic structural changes. The Conference of Chief Justices and the Conference of State Court Administrators have recently adopted Principles for Judicial Administration to guide them as they seek to restructure court services and secure

* Vice President for Court Consulting Services, National Center for State Courts; M.P.A.,

Finance and Policy Analysis University of Colorado; B.A., Sociology, University of Colorado. ** Former Court Administrator, Vermont State Judiciary; Of Counsel, National Center for

State Courts; Principal Consultant, Fair Shake Consulting. 1 William T. (Bill) Robinson III, Rising to Historic Challenge: Funding for State Courts,

Preserving Justice, 51 JUDGES J. 8, 9 (2012). 2 Id. 3 See id. 4 Id.

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506 New England Law Rev iew V. 47 | 505

adequate funding.5 The Principles are also intended to help members of legislative bodies . . . understand the difficult structural and fiscal decisions required to enable courts to enhance the quality of justice while facing increased caseloads with fewer resources.6

This Article will provide recent data on the funding of state courts and

its impact on those served by the courts. It will provide examples of state

court systems that have dramatically and successfully re-engineered their

operations, and it will discuss how the Principles for Judicial Administration

can guide state court leaders and legislators as they work to ensure that

courts serve all who enter their doors seeking justice.

I. Funding the States Courts

As a core function of government, courts must be adequately funded.

Citizens rely upon the courts to play an important role in keeping our

streets safe, and maintaining a peaceful and orderly society. We rely on the

courts to keep our people safe from the guilty and to protect the innocent

from government abuse. Business leaders rely on the courts to provide the

stable resolution of business and commercial disputesthe basis for a

vibrant economy. We all look to the courts to maintain the rule of law, so

fundamental to a democratic nation.

Securing adequate funding for the courts presents numerous challenges. In order to understand these challenges, and to begin

identifying the steps to meet them, one must first understand who decides how much money courts receive to fund court services and access to justice. The National Center for State Courts (NCSC)7 recently completed a survey of the Conference of State Court Administrators (COSCA),8 the administrative leaders of our nations state courts. The survey gathered information on the sources of funding for the states courts and on the

impact that the tough economic climate of the past four years has had on the ability of the states courts to provide access to justice and the fair and

5 Policy Statements & Resolutions: Resolution 4, In Support of the Principles for Judicial

Administration, CONFERENCE OF CHIEF JUSTICES,

http://ccj.ncsc.dni.us/CourtAdminResolutions/resol4JudicialAdministration.html (last visited

Apr. 9, 2013). 6 NATL CTR. FOR STATE COURTS, PRINCIPLES FOR JUDICIAL ADMINISTRATION: GOVERNANCE,

CASE ADMINISTRATION, ESSENTIAL FUNCTIONS AND FUNDING, at i (July 2010) [hereinafter

NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION], available at

http://www1.spa.american.edu/justice/documents/4159.pdf. 7 For information regarding the National Center for State Courts, see http://www.ncsc.org. 8 For information regarding the Conference of State Court Administrators, see

http://cosca.ncsc.dni.us.


2013 Responding to the Crisis 507

timely resolution of disputes.9

We learned from the survey that the state general fund is the primary source of court funding in approximately two-thirds of the states.10 Where

the general fund is not the source, trial courts rely on a mix of state and local funding.11 Where such funding does come from the state, it is the state legislature that is responsible. In these states, the state funds trial court judges, judicial support staff, clerical staff, technology and operating expenses.12 In fact, [i]n some of these states, the probation department is included in the Judiciarys budget.13 Facilities, the courthouses, and the

maintenance thereof are normally paid at the county level.14

The governor or county executive will usually make recommendations on the court budget as part of the submission of the total budget for the state or county. However, it is the state legislatures, as well as county and

municipal councils, that establish the judicial budget in their appropriations legislation. Typically, the state or local budget allocates the revenue received from broad-based taxes such as the income, sales, and property taxes. The revenue accumulates into what is usually referred to as the general fund.

The general fund pays for what it costs to operate the three branches of

government, and it pays for the cost of providing needed services to a given states or countys citizens. Such services include: educating the children; keeping people warm in the winter; and making sure that people have food to eat, a roof over their heads, and access to quality health care.

Only a minuscule segment of general fund dollars are spent on state court resources.15 Where such courts are wholly state funded, . . . [they only] receive approximately two percent of the general fund.16

Revenue from income and sales taxes over the past four years has

declined or not grown sufficiently to keep pace with demands on government services, thereby reducing the size of the general fund.17 This

9 NATL CTR. FOR STATE COURTS, THE 2012 BUDGET SURVEY OF STATE COURT

ADMINISTRATORS 1 (2012) [hereinafter COSCA BUDGET SUMMARY], available at

http://www.ncsc.org/Information-and-Resources/Budget-Resource-

Center/Budget_Funding.aspx (follow Budget Survey Summary hyperlink). 10 Id. 11 Id. 12 Id. 13 Id. 14 See id. 15 See generally NATL CTR. FOR STATE COURTS, COSCA BUDGET SURVEY (2012) [hereinafter

COSCA BUDGET SURVEY], available at http://www.ncsc.org/Information-and-

Resources/Budget-Resource-Center.aspx (follow All States Response hyperlink). 16 COSCA BUDGET SUMMARY, supra note 9, at 1. 17 See, e.g., COSCA BUDGET SURVEY, supra note 15, at 1, 5, 9 (revealing a reduction in the



decline has made it difficult for the courts to maintain a fair share of the general fund, let alone receive needed increased funding. The situation has improved somewhat in the past year. The COSCA Budget Summary notes that most state court systems [have] received small increases in their appropriations compared to the previous year; only a handful saw

reductions.18

The challenge for the courts is to make clear that providing access to justice and court services is equally, or more, important to the state or county as any other government-funded services. Courts cannot simply

claim that, as a branch of government, they deserve more than 2% of the general fund. Courts need to show not only that they are providing needed services; they need to demonstrate that they are performing those services well and managing their delivery in an effective and efficient manner.19

While the difficult economy of the past four years has exacerbated the

problem of securing adequate funding, the challenge is nothing new. Courts have struggled to secure adequate funding for years.20 Shortages in the number of judges and support staff needed to provide court services have existed in many states for a long time.21 Challenges in providing access to those seeking justice have existed for decades.22

The future will be equally as challenging. The judiciary will attempt to secure funding from legislatures dedicated to reducing taxes; reducing the size of government; and enhancing services to families who need food, housing, heat, and health care.23 Seventy percent of the state court

administrators report that they expect their budget situation to stay relatively the same over the next three years. . . . Eleven percent expect their budget situation to get worse.24

This Article includes information that the NCSC has obtained from

general fund in Alabama, Arizona, and California); see COSCA BUDGET SUMMARY, supra note

9, at 4. 18 COSCA BUDGET SUMMARY, supra note 9, at 2. 19 See NATL CTR. FOR STATE COURTS, FUNDING JUSTICE: STRATEGIES AND MESSAGES FOR

RESTORING COURT FUNDING 13-14 (2012) [hereinafter NCSC, FUNDING JUSTICE], available at

http://www.ncsc.org/Information-and-Resources/Budget-Resource-

Center/~/media/Files/PDF/Information%20and%20Resources/fundingjustice.ashx. 20 See Joseph P. Nadeau, Ensuring Adequate Long-Term Funding for the Courts:

Recommendations from the ABA Commission on State Court Funding, 43 JUDGES J. 15, 15 (2004)

(discussing a state court funding crisis existing just a few years before the current one). 21 See Quintin Johnstone, Law and Policy Issues Concerning the Provision of Adequate Legal

Services for the Poor, 20 CORNELL J.L. & PUB. POLY 571, 632 (2011). 22 See id. at 571-72. 23 See, e.g., John Dooley, Judicial Funding in Times of Budget Crisis, VT. B.J., Winter 2008-2009,

at 34 (describing Vermonts struggle with securing funding from its legislature). 24 COSCA BUDGET SUMMARY, supra note 9, at 2.



state court administrators documenting the level of funding for those trial courts that are primarily state funded. Only anecdotal information is available on the level of funding provided by counties and municipalities in those states that depend on local funding bodies.

State court administrators have provided some information on the

level of local funding. In Michigan, many of the local trial courts faced reductions in recent years; some of those reductions were significant.25 The budget for the largest district court in the state, in the City of Detroit, decreased from $44.2 million with 392 positions in 2008-2009, to $33 million

with 285 positions in 2012-2013.26 In Arizona and Missouri, many locally funded trial courts have undergone budget reductions over the past four years.27 In other states, Kansas and Utah for example, local funding has remained consistent.28

A. Funding Judgeships

The survey of state court administrators reveals that the number of judicial positions has remained fairly stable over the past four years. In most states, the number of general-jurisdiction trial court judges is set by statute; and legislative bodies have not passed laws to reduce the number of judgeships. Over the past four years, a third of the states added one to

three judgeships to match the growing caseload.29 In about half of the states the number of trial court judgeships remained the same.30 Two states have reduced the number of judgeshipseach by one.31

While the number of judgeships has not been reduced, state court

leaders reduced the number of days that judges actually sit on the bench or are available to hear and decide cases.32 While state court leaders cannot on their own reduce the number of judgeships, they can respond to budget shortfalls by reducing the number of times that they call on retired judges to take the bench to replace judges who are sick, on vacation, or to assist

25 COSCA BUDGET SURVEY, supra note 15, at 39. 26 Id. 27 Id. at 5, 46. 28 Id. at 28, 80. 29 See NATL CTR. FOR STATE COURTS, COSCA BUDGET 2013 FINAL ANALYSIS [hereinafter

COSCA BUDGET FINAL ANALYSIS], available at http://www.ncsc.org/Information-and-

Resources/Budget-Resource-Center/Budget_Funding.aspx (last visited Apr. 9, 2013) (click on

Full survey analysis hyperlink in order to access all graphical data and click on tab entitled

Budget Request Process). 30 See id. 31 See id. 32 See id.



judges to clear up their backlog.33 About one-third of the states have reduced or eliminated the practice of calling upon retired judges.34

The COSCA Budget Summary states: In one-third of the states, court

leaders made the difficult decision to cut costs by reducing the number of hours that courthouses are open or, in some states, by closing the courts for one day per month and imposing furloughs on the court staff.35 During a furlough, trial court staff members are not paid.36 Though many state constitutions prohibit furloughs insofar as they reduce the salaries of jurists,37 judges in most of these states have placed themselves under

voluntary furlough, essentially refusing pay for these days.38 The salaries of state trial court judges have not kept up with inflation,

and [i]n half the states, the salaries of judges have been frozen.39 In 2009, only thirteen states increased the salaries of the judges in their general- jurisdiction trial courts; in 2010 and 2011, only nine states increased salaries; by July of 2012, fifteen states gave raises to their general-

jurisdiction trial court judges.40 While most states have frozen salaries for only a few years, the salaries of New Yorks judges were frozen for twelve consecutive years.41 The last salary increase for Michigans judges happened in January 2002.42 Salary freezes impact the quality of justice. It is imperative that the judiciary is populated with our best and brightest attorneys. Judges weigh the competing arguments of attorneys who

practice before them. They need to have the knowledge, experience, and judgment to make the soundest decision. Litigators need the trust and confidence of their clients and the public that judicial decisions are fair and conform to the law. Salary freezes not only impact judicial morale, but may also result in jurists leaving public service. Additionally, these salary freezes could impact whether the best and brightest attorneys choose to

leave their law practices to join the judiciary.

33 See id. 34 See id. 35 See COSCA BUDGET SUMMARY, supra note 9, at 3. 36 Stephen N. Zack, More Than a Budget Line Item: An Adequately Funded Judiciary is of

Utmost Necessity to Ensure Access to Justice, A.B.A. J., Nov. 2010, at 8. 37 Id. 38 Id.; see COSCA BUDGET SUMMARY, supra note 9, at 3. 39 COSCA BUDGET SUMMARY, supra note 9, at 2-3. 40 NATL CTR. FOR STATE COURTS, SURVEY OF JUDICIAL SALARIES 1 (2012), available at

http://www.ncsc.org/~/media/Microsites/Files/Judicial%20Salaries/jud_2012.ashx. 41 William Glaberson, State Judges Get 27% Raise Over 3 Years, N.Y. TIMES, Aug. 27, 2011,

http://www.nytimes.com/2011/08/27/nyregion/commission-raises-ny-judges-pay-27-over-3-

years.html?pagewanted=all. 42 COSCA BUDGET SURVEY, supra note 15, at 39-40.



B. The Funding of Court Staff

While judges are the public face of the judiciary, responsible for hearing and deciding cases and determining the rights of those who appear before them, judges cannot do their important work without support staff. While most people envision only judges when they think of the judiciary, the fact is that judges only compose 10-15% of the court workforce.

Judges require law clerks to assist with legal research, secretarial

support to prepare findings and orders, and court reporters to record hearings and prepare verbatim transcripts. Additionally, clerical staff members are required to: schedule their cases; notify parties of hearings; make docket entries of court events; and create, retrieve, and store case

files. Clerical staff members are also needed to provide direct services to attorneys, litigants, and the public. Court staff members provide customer service: they greet persons at the counter and on the phone; they answer questions; and they direct attorneys and litigants to the correct courtroom.

In recent years, court staff have filled a growing need for assistance by

pro se, or self-represented litigants. Throughout the country, a growing number of people are entering courts to obtain divorce or parenting orders, domestic abuse protective orders, and small claims judgmentsall without the assistance of attorneys.43 Courts have established programs, created forms and instructions, and trained staff to provide assistancebut not

legal adviceto self-represented litigants.44

Many courts have also hired and trained staff members to serve as mediators to assist represented and self-represented litigants in civil and family cases.45 Mediated orders not only free up judges to decide cases

most needing of their attention, but they also usually result in resolutions that best meet the needs of all parties. Courts and judges also need adequate staff to manage the business of the court: to manage its human resources department, its finance and budget management department, and to identify and implement operational improvements.

43 Jim Hilbert, Educational Workshops on Settlement and Dispute Resolution: Another Tool for

Self-Represented Litigants in Family Court, 43 FAM. L.Q. 545, 547 (2009). 44 See, e.g., COMMITTEE ON RESOURCES FOR SELF-REPRESENTED PARTIES: STRATEGIC

PLANNING INITIATIVE, REPORT TO THE JUDICIAL COUNCIL 6-11 (2006) [hereinafter COMMITTEE

ON RESOURCES FOR PRO SE LITIGANTS], available at

http://www.utcourts.gov/resources/reports/docs/ProSe_Strategic_Plan-2006.pdf. 45 See, e.g., VT. JUDICIARY, MEDIATION FOR PARENTS IN FAMILY COURT: SEPARATION,

DIVORCE, PARENTAGE, DISSOLUTION OF CIVIL UNION, BLENDED FAMILIES, POST-DIVORCE 1-4

(2010), available at http://www.vermontjudiciary.org/gtc/Family/SharedDocuments/

FamilyCrtMediationProgram.pdf ; Family Court Services, HENNEPIN, http://www.hennepin.us/

(follow Public Safety & Law link; then follow Family Court Services link) (last visited

Apr. 13, 2013).



In recent years, as courts embraced technology, information technology

specialists joined these courts: to write software that meets the needs of the judges and the public; to ensure that technology used in the courtroom and the clerks office runs appropriately; and to see that the court website delivers information that attorneys, litigants, and the public require.

As stated earlier in this Article, over the past four years the number of judicial positions has remained fairly stable. Over this same period of time, the number of trial court and central office staff members working in the judicial branch has declined. In almost one-third of the states, the trial

courts are operating with at least 8% fewer staff membersspecifically, central office staff membersthan they had four years ago.46 Ten percent of states expect to further reduce the number of staff members working in the trial courts this year.47

Over the past four years, almost all of the states and territories have taken steps such as laying off staff, delaying the filling of staff and judicial

vacancies, and reducing court hours. Not surprisingly, as one-quarter to one-third of the states report, these steps have resulted in reduced service to the public, reduced access to court services, and delays in the resolution of disputes.48 Yet, due to the implementation of countermeasures, such as improved business processes, the introduction of technology, and management restructuring, only half of the states report that these steps

are resulting in reduced service to the public.49

II. Reengineering the States Courts and the Principles that Guide

Decisions

To secure adequate funding, the courts of the future must demonstrate

that they are governed well and structured in ways that maximize access to justice and the delivery of court services. Public trust and confidence in the judiciary is an essential element of a stable society. To maintain that trust, courts must hear and resolve disputes fairly and timely at a reasonable cost to litigants and taxpayers.

Courts must demonstrate that they are managed effectively and

efficiently as a twenty-first century organization that meets the expectations of a twenty-first century public.50

Many court systems today work within organizational structures

designed in the nineteenth century. Their organizational and geographical structure prevents the efficient and effective use of resources and confuses

46 COSCA BUDGET SUMMARY, supra note 9, at 3-4. 47 Id. 48 Id. 49 Id. 50 See NCSC, FUNDING JUSTICE, supra note 19, at 13-14.



the public as they attempt to access the courts. The state courts of the twenty-first century face critical challenges. The following sections of this Article seek to highlight just some of those challenges and demonstrate how some states address them.

A. Providing Access to the Courts

One challenge for our courts is to accommodate the growing number of self-represented parties.51 Many people involved in divorce proceedings appear without an attorney. Most people seeking protection from domestic abuse file their own requests for protective orders.52 Most people filing and

defending small-claims suits are self-represented.53 Many states are addressing this challenge by: (1) establishing dedicated self-help centers; (2) creating virtual self-help centers; (3) creating enhanced websites that provide court information; and (4) offering instructions and document-assembly software to assist self-represented litigants file and defend court actions.54

B. Assisting Court Users with Limited English Proficiency

A growing number of immigrants and refugees with limited English proficiency are entering our communities.55 Many of these individuals, as with the population in general, come into contact with and require access

to the courts. Due process requires that all those involved in court proceedings understand those proceedings.56 States are addressing this challenge by making sure that all persons understand their right to an interpreter. This is done by making sure that qualified interpreters are available and by exploring remote interpretation through video-conferencing technology. State courts also translate court forms and

informational materials into languages spoken in their respective communities.57

51 See, e.g., COMMITTEE ON RESOURCES FOR PRO SE LITIGANTS, supra note 44. 52 See, e.g., id. 53 See, e.g., id. 54 See Self-Representation: State Links, NATL CTR. FOR STATE COURTS,

www.ncsc.org/topics/access-and-fairness/self-representation/state-links.aspx (last visited

Apr.11, 2013). 55 See ANN MORSE, A LOOK AT IMMIGRANT YOUTH: PROSPECTS AND PROMISING PRACTICES,

NATL CONFERENCE OF STATE LEGISLATURES: CHILDRENS POLY INITIATIVE 1 (Mar. 2005),

available at www.ncsl.org/documents/immig/CPIimmigrantyouth.pdf. 56 Competency to Stand Trial, 40 GEO. L.J. ANN. REV. CRIM. PROC. 459, 459 (2011). 57 In October 2012, the NCSC held a National Summit on Language Access to the Courts. Fifty-

one states and territories attended. They each developed action plans to address the

challenges identified. Although the report summarizing the summit and each states action



C. Making Full Use of Technology and Moving to Electronic Records

Today, most courts operate as the paper-oriented courts of a different era. A person entering the clerks office will see the paper files piled on desks, just as the clerks office looked decades ago.58 Court staff members spend an inordinate amount of time creating paper files, storing them, and retrieving them.59 Attorneys travel to the courthouse to file papers or access documents stored in the court files. Attorneys and court employees send

pleadings, notices of hearings, and other communications not electronically, but by calling on the services of the United States Postal Service.60 Stenographic reporters make the verbatim record of courtroom proceedings on paper tape.61

Some state courts have moved to electronic record and other

technologies often referred to as eCourt.62 These technologies not only enable the courts to operate more efficiently and effectively, but also enhance access to the courts and provide attorneys offices, other state agencies, and the public with better information. Attorneys are able to electronically file complaints, petitions, and motions with the court. They

can receive decisions electronically and not have to wait for the mail to arrive from the post office. They can access a courts website to know when their cases are next scheduled. Law enforcement can electronically file petitions with the court and check court schedules for future appearances. In many of these states, the courtroom verbatim record is made and preserved electronically and attached to the case file.

More than half of the states have now or are in the process of adopting and implementing eCourt technologies this year.63 One-half of these states

plan is not yet final, the agenda for the summit is available. See National Summit on Language

Access in the Courts, NATL CTR. FOR STATE COURTS (Oct. 2012), http://www.ncsc.org/Services-

and-Experts/Areas-of-expertise/Language-access/LA-Summit/Program.aspx. 58 See generally THOMAS G. DIBBLE, A GUIDE TO COURT RECORDS MANAGEMENT ix-x (1986). 59 See Arthur M. Monty Ahalt, Remaking the Courts and Law Firms of the Nation: Industrial

Age to the Information Age, 31 TEX. TECH L. REV. 1151, 1152 (2000). 60 See id. 61 Contra Frederic I. Lederer, The Road to the Virtual Courtroom? A Consideration of Todays

and TomorrowsHigh-Technology Courtrooms, 50 S.C. L. REV. 799, 826 (1999). 62 Technology, NATL CTR. FOR STATE COURTS, http://www.ncsc.org/Topics/Technology.aspx

(last visited Apr. 11, 2013). 63 COSCA BUDGET SUMMARY, supra note 9, at 5-7; see generally COSCA BUDGET SURVEY,

supra note 15; see, e.g., eCourts, N.Y. STATE UNIFIED COURT SYSTEM,

http://iapps.courts.state.ny.us/webcivil/ecourtsMain (last visited Apr. 11, 2013); eCourt *Kokua,

HAW. STATE JUDICIARY,

http://www.courts.state.hi.us/legal_references/records/jims_system_availability.html (last

visited Apr. 11, 2013); Oregon eCourt, OREGON COURTS,

http://courts.oregon.gov/oregonecourt/pages/index.aspx [hereinafter Oregon eCourt] (last



have received funding to create and enhance their computer programs.64

Many state court systems are meeting these challenges and the challenges of providing access to justice despite limited funding, by restructuring and consolidating their operations . . . by introducing eCourt. Sixty percent of the state court administrators report that because of restructuring and technology enhancements, their courts are in a better position than four years ago to provide access and timely justice.65

As we have learned from this years budget survey of state court

administrators, many state courts have been responding to budget cuts by laying off or furloughing staff, reducing hours of operation, and freezing salaries. When the economy finally recovers, state courts will be even further behind if they have wasted valuable time by not developing strategies and structures to fulfill emerging needs.

D. Identifying Viable Solutions

As former New Hampshire Chief Justice John T. Broderick has written: [C]reative innovation is no longer just a good idea, it is an absolute prerequisite to survival.66 The years ahead will demand that state courts do more with the same. That is not possible, however, without real,

systemic change. Our challenge is to begin the reengineering that change demands and do so in a very challenging economy.67

To meet the challenges of the twenty-first century, courts need to engage in business process engineering of the twenty-first century.

Business academia has identified seven principles to reengineer systems by streamlining business processes and significantly improving quality, efficiency, and cost: (1) organize around outcomes, not tasks;68 (2) identify all the processes in an organization and prioritize them in order of redesign urgency;69 (3) integrate information-processing work in the real work that produces the information;70 (4) treat geographically dispersed resources as

visited Apr. 11, 2013). 64 See generally Oregon eCourt, supra note 63. 65 COSCA BUDGET SUMMARY, supra note 9, at 5. 66 John T. Broderick, Jr. & Daniel J. Hall, What is Reengineering and Why is it Necessary?, in

NATIONAL CENTER FOR STATE COURTS, FUTURE TRENDS IN STATE COURTS 25 (Carol R. Flango et

al. eds., 2010), available at

http://cdm16501.contentdm.oclc.org/cdm/ref/collection/ctadmin/id/1622. 67 Id. 68 MICHAEL HAMMER & JAMES CHAMPY, REENGINEERING THE CORPORATION: A MANIFESTO

FOR BUSINESS REVOLUTION 38 (2006). 69 Id. at 127. 70 See id. at 56.



though they were centralized;71 (5) link parallel activities in the workflow instead of just integrating results;72 (6) put the decision point where the work is performed, and build control into the process;73 and (7) capture information once and at the source.74

A number of state court systems have been analyzing, redesigning, and

reorganizing their processes with a focus on what is best for the public rather than what is good for the courts. These states have taken a comprehensive enterprise perspective with the main goal of decreasing costs and increasing qualitythe very definition of business process

reengineering.75 Court leaders in these states are attempting to develop a court system

that is flexible enough to respond to changing demands, lean enough to be as efficient as possible, and innovative enough to keep its judicial services technologically freshall with a staff dedicated to improving service. But, as stated above, many state court systems work within organizational

structures designed over a century ago to address a different era. Constitutional and statutory provisions often lock state court systems into an organizational structure that is geographically disparate, with decentralized administrative controls that prevent the most efficient use of resources.76 Jurisdictional overlap or inconsistencies often confuse the public as it attempts to access the courts.77

1. Five Steps to Reengineering

Court leaders who have taken on the reengineering of their court systems have used five specific steps or processes: (1) gathering the right people to the table; (2) recognizing the long-term structural nature of the

problem; (3) developing principlesadministrative, governance, and essential functionsto assist in viewing the issues; (4) identifying possible solutions and analyzing their likely impacts; and (5) sorting the solutions

71 See id. at 66-67. 72 See id. at 57. 73 See id. at 54-55. 74 See HAMMER & CHAMPY, supra note 68, at 45. 75 See Lean Glossary, LEANOVYS.COM,

http://www.lenovys.com/en/areaa_didattica/lean_glossary.htm (last visited Apr. 6, 2013). 76 See INGO KEILITZ ET AL., NATL CTR. FOR STATE COURTS, A STUDY OF COURT

CONSOLIDATION IN MAHONING COUNTY, OHIO: FINAL REPORT, at i (June 22, 2011), available at

http://ncsc.contentdm.oclc.org/cdm/ref/collection/ctadmin/id/1868. 77 See CITIZENS COMMN ON THE TEX. JUDICIAL SYS., INTO THE TWENTY-FIRST CENTURY: A

REPORT TO THE TEXAS SUPREME COURT AND THE TEXAS JUDICIAL COUNCIL 20 (Jan. 5, 1993),

available at http://www.courts.state.tx.us/tjc/publications/cc_tjs.pdf.



into three groupsshort-term, medium-term, and long-term.78

2. The Importance of Developing Guiding Principles

While all five steps to reengineering are important, this Article focuses

on the importance of developing guiding principles.79 Developing an operational set of principles surrounding administration, governance, and the essential functions of courts are necessary for a number of reasons. First, these operational principles provide a lens through which to evaluate options, provide guidance to make difficult budget decisions, and set priorities. In addition, an operational set of principles provides a vehicle

for judicial leadership to harness the energy and cooperation of the judicial community.

III. The Principles for Judicial Administration

In July 2012, the Conference of Chief Justices and the Conference of

State Court Administrators adopted the Principles for Judicial Administration (Principles)80 as practical operational principles. These are intended to assist chief justices and state court administratorsas well as presiding judges and trial court administrators in locally funded jurisdictionsto address the long-term budget shortfalls and the inevitable restructuring of court services. The Principles are designed for use by the judicial branch

leadership of each state as a basis for the establishment of each states own like set. They are also intended to help members of legislative bodies and their staffs understand the difficult structural and fiscal decisions required to enable courts to enhance the quality of justice while facing increased caseloads with fewer resources.

A number of groups worked independently to develop these guiding

principles. Principles relating to effective governance have been developed in conjunction with the National Center for State Courts (NCSC) Harvard Executive Session81 and the reengineering experience of several states. Decision-Making and Case Administration Principles have been

completed through the High Performance Court Framework.82 Finally,

78 Broderick & Hall, supra note 66, at 25. 79 See infra Part III. 80 NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at i. 81 Harvard Executive Session for State Court Leaders in the 21st Century, 2008-2011, NATL CTR.

FOR STATE COURTS, http://www.ncsc.org/services-and-experts/court-leadership/harvard-

executive-session.aspx (last visited Apr. 6, 2013). 82 BRIAN OSTROM & ROGER HANSON, NATL CTR. FOR STATE COURTS, ACHIEVING HIGH

PERFORMANCE: A FRAMEWORK FOR COURTS iv-v, 2 (Apr. 2010), available at

http://www.ncsc.org/Services-and-Experts/Technology-tools/Court-Technology-

Framework/~/media/Files/PDF/Services%20and%20Experts/CTF/Achieving_HPC_April_2010.



Funding Principles were developed using the Conference of State Court Administrators (COSCA) white papers;83 the Conference of Chief Justices (CCJ)/COSCA policy resolutions; the Trial Court Performance Standards;84 the National Center for State Courts CourTools;85 the ABA Task Force on Preservation of the Justice System;86 and recent NCSC

reengineering projects. The Principles are set forth below, along with an abbreviated version of

their commentary.87 The full document and commentary is available at the National Center for State Courts Budget Resource Center website.88

A. Introduction to the Principles for Judicial Administration

As a separate branch of government, courts have the duty to protect citizens constitutional rights, provide procedural due process, and preserve the rule of law. Courts are a cornerstone of our society and provide a core function of governmentadjudication of legal disputes. Adequate and stable funding is required for courts to execute their

constitutional and statutory mandates. While the judiciary is a separate branch of government, it cannot function with complete autonomy. Courts depend on elected legislative bodies at the state, county, and municipal levels for funding.89 Judicial leaders are responsible for demonstrating what funding level is necessary, establishing administrative structures, and putting forth management processes that document efficient use of

taxpayer dollars.90 With this foundation, establishing principles that guide efforts to define what constitutes adequate funding is possible.

ashx. 83 CONFERENCE OF STATE COURT ADMR, POSITION PAPER ON STATE JUDICIAL BRANCH

BUDGETS IN TIMES OF FISCAL CRISIS 2-4 (Dec. 2003), available at

http://cosca.ncsc.dni.us/white_papers.html. 84 BUREAU OF JUSTICE ASSISTANCE, U.S. DEPT OF JUSTICE, NCJ 161570, TRIAL COURT

PERFORMANCE STANDARDS WITH COMMENTARY, at iii (1997), available at

https://www.ncjrs.gov/pdffiles1/161570.pdf. 85 NATL CTR. FOR STATE COURTS, COURTOOLS (2005), available at

http://www.courtools.org/~/media/Microsites/Files/CourTools/CourTools_Trial_Brochure.ash

x. 86 Task Force on Preservation of the Justice System, A.B.A.,

http://www.americanbar.org/groups/justice_center/task_force_on_the_preservation_of_the_ju

stice_system.html (last visited Apr. 6, 2013). 87 Infra Part III.A. 88 NATL CTR. FOR STATE COURTS, BUDGET RESOURCE CENTER,

http://www.ncsc.org/Information-and-Resources/Budget-Resource-Center.aspx (last visited

Apr. 13, 2013). 89 NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at 12. 90 See id. at 12, 14.



The Governance, Decision-Making, and Case Administration

Principles form the basis for establishing the necessary administrative structures and management processes.91 By effectively managing public resources, court leaders can determine for themselves what funding is needed to provide quality judicial services and present an effective

argument to funding bodies.92 The third set, the court-specific Funding Principles, can be successfully implemented only when a supportive governance and organizational infrastructure exists.93 The first five Funding Principles address the development and management of the judicial budget. The second five are intended to identify what policy makersboth in and outside the judicial branchneed to consider when

determining the level of adequate funding for the judiciary.

B. Governance Principles

Governance is the means by which an activity is directed to produce the desired outcomes.94 The state court systems that have most

successfully redesigned their processes and made the changes needed to improve court services established a well-defined governance structure for policy formation and administration.95 They select their leaders based on merit rather than seniority and ensure that the court system has a highly-qualified, competent, and well-trained workforce.96

These court systems have created efficient structures and business

processes while enhancing quality, and exercising management control over all resources that support judicial services within their jurisdiction.97 Adherence to administrative governance principles has enabled the consolidation of management positions within a jurisdiction. It has also

enabled court leaders to efficiently balance workload among judicial

91 Id. at 1. 92 Id. 93 Id. 94 Id. at 2. 95 NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at 2. 96 Id. at 4. 97 See, e.g., Laura Klaversma & Lee Suskin, A CASE STUDY: REENGINEERING MINNESOTAS

COURTS, NATL CTR. FOR STATE COURTS 18 (Dec. 2012), available at

http://www.ncsc.org/services-and-

experts/~/media/Files/PDF/Services%20and%20Experts/Court%20reengineering/MN_Case%2

0Study_Final_%20Report.ashx; Lee Suskin & Daniel J. Hall, A CASE STUDY: REENGINEERING

UTAHS COURTS THROUGH THE LENS OF THE PRINCIPLES FOR JUDICIAL ADMINISTRATION (2012)

[hereinafter SUSKIN & HALL, REENGINEERING UTAHS COURTS], available at

http://www.ncsc.org/services-and-

experts/~/media/files/pdf/services%20and%20experts/court%20reengineering/utah%20case%2

0study%202%2027.ashx.



officers and court staff based on objective workload models.

C. Decision-Making and Case Administration Principles

To make the best use of taxpayer dollars, court leadership should

recognize that the adversarial process is not necessarily the best means to resolve some types of disputes; court leaders should make alternative dispositional approaches available.98

Effective management of the courts time demands that judges, with

the assistance of court administrative staff, exercise management and control over the legal process and the flow of cases through the court. Court leaders must ensure that court procedures are simple, clear, streamlined, and uniform to facilitate expeditious processing of cases and to provide justice at the least expense to litigants and taxpayers. Courts can provide justice at a reasonable cost by ensuring that judicial officers give an

appropriate level of attention to each case.99 Courts must continually evaluate the effectiveness of their policies, practices, and new initiatives.

D. Court Funding Principles

The judicial system is dependent on the other branches of government

for its funding. Funding Principles are designed for the use of all branches of government when exercising their respective duties and responsibilities regarding judicial budget requests and appropriations.

1. Developing and Managing the Judicial Budget

Effective court management, together with transparent budget requests supported by well-documented justification, enhances the credibility of the courts and reduces obstacles to securing adequate funding. These principles are aimed at establishing credibility and acknowledging accountability by keeping in place necessary autonomy. The first of these management principles (sixteenth overall) states: Judicial Branch

leadership should make budget requests based solely upon demonstrated need supported by appropriate business justification, including the use of workload assessment models and the application of appropriate performance measures.100 Our seventeenth principle states: Judicial Branch leadership should adopt performance standards with corresponding, relevant performance measures and manage their

operations to achieve the desired outcomes.101 Performance measures

98 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 33. 99 NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at 17. 100 Id. at v, 15. 101 Id. at iv, 13.



permit the other branches of government and the public to appropriately hold the judiciary accountable for effective management of court operations.

The eighteenth of these principles states: Judicial Branch budget requests should be considered by legislative bodies as submitted by the

Judicial Branch.102 The judiciarys budget request should not first require prior approval of the executive branch. The nineteenth principle calls for Judicial Branch leadership to have the authority to allocate resources with a minimum of Legislative and Executive Branch controls including budgets that have a minimal number of line items.103 Budget line items should not be used to restrict the judicial branch from having reasonable autonomy to

manage scarce resources. The twentieth principle states: Judicial Branch leadership should administer funds in accordance with sound, accepted financial management practices.104 Court leaders should be expected to adopt reliable financial management practices to administer all funds belonging to the courts including: appropriated funds, revenues, fees received, and trust funds held on behalf of litigants or other parties.

2. Providing Adequate Funding

The judiciary needs adequate funding to provide a forum for the just resolution of disputes, the preservation of the rule of law, and the protection of all rights and liberties guaranteed by the Constitution. The

first of these court-funding principles (twenty-first overall) states: [C]ourts should be funded so that cases can be resolved in accordance with recognized time standards by judicial officers and court staff functioning in accordance with adopted workload standards.105 The twenty-second principle calls for responsible funding entities to ensure that courts have facilities that are safe, secure and accessible and which are designed, built

and maintained according to adopted courthouse facilities guidelines.106 The twenty-third principle states: [T]he court system should be funded to provide technologies needed for the courts to operate efficiently and effectively and to provide to the public services comparable to those provided by the other branches of government and private businesses.107 To keep pace in a rapidly developing technological society, courts must be

equipped with technology necessary to remain efficient and relevant. Principle twenty-four states: [C]ourts should be funded at a level that

102 Id. 103 Id. at iv. 104 Id. 105 NCSC, PRINCIPLES FOR JUDICIAL ADMINISTRATION, supra note 6, at iv. 106 Id. at 3. 107 Id.



allows their core dispute resolution functions to be resolved by applying the appropriate dispositional alternative.108 And finally, the twenty-fifth principle states: Court fees should not be set so high as to deny reasonable access to dispute resolution services provided by the courts.109

E. Conclusion to the Principles for Judicial Administration

Judicial, legislative, and executive branch leaders must understand the nature of the judicial function and the role courts play in the larger world. Courts are a core function of government. The Governance, Decision-Making, and Case Administration Principles discussed above form the

foundations that courts need in place to pursue adequate funding. Courts cannot successfully implement Funding Principles unless they have the basic structural, management, and administrative practices in place. These provide the foundation upon which court management and subsequent funding requests are based.110 The Funding Principles set forth herein provide a framework in which judicial and legislative leaders can secure

stable and adequate funding key to the successful discharge of the judicial branch mission.

IV. State Courts Use of Principles to Reengineer Their Courts

State court systems have established and been guided by their own set

of principles as they examine and, where appropriate, change their

structure and business processes to enhance the quality of judicial services

and reduce costs.111 The following describes what five state judiciaries have

done to reengineer their respective court systems.

A. Reengineering the Courts of Utah112

The Utah Judicial Branch is a prime example of a state court system

that has embraced judicial administration principles, reengineering the

way its courts do business and organizing its operation around the optimal

use of available funding.113 The work that the Utah Judicial Branch has

done over the past thirty years to create a strong governance model and a

clear and simplified structure made their reengineering efforts not only

108 Id. 109 Id. 110 Id. at 1. 111 Principles, NATL CTR. FOR STATE COURTS, http://www.ncsc.org/Services-and-

Experts/Court-reengineering/Principals.aspx (last visited Apr. 6, 2013). 112 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 6. 113 Id. at 1.



possible but successful.114

1. Applying the Governance Principles for Judicial Administration

The Utah Judicial Branch established the Judicial Council as its policy-making body and the authority for the administration of the judiciary.115 The Utah Judiciary has established a strong governance model, one based upon principles articulated by Utahs Chief Justice Christine M. Durham and Utahs State Court Administrator Daniel Becker. Their governance

principles formed the basis for the NCSCs Principles for Judicial Administration.116 The Utah Judiciarys Governance Model is based on the concept that the court structure should be explicit, and the authority for policy decision-making and implementation well defined.117 Utah operates under the principle that the judiciary must speak with a single voice, with a single unified message.118

Utah has a simple court structure. In addition to the Supreme Court, it has a single intermediate Court of Appeals. The trial courts are comprised of a district court, a juvenile court, and a justice court in each of the states eight judicial districts.119 The district court is the state trial court of general

jurisdiction;120 [t]he [j]uvenile [c]ourt is a court of special jurisdiction;121 and the justice courts are established by the Utah Constitution.

The Utah Judicial Branchs presiding officer, the Chief Justice of the Utah Supreme Court, is the sole authority for establishing and representing

the official position of the judiciary on issues concerning the Judicial Branch.122 The Judicial Council (Council) establishes policy for the Utah

114 Id. 115 Court Governance, UTAH STATE COURTS, http://www.utcourts.gov/knowcts/adm/ (last

modified May 23, 2012). 116 See CHRISTINE M. DURHAM & DANIEL BECKER, A CASE FOR COURT GOVERNANCE

PRINCIPLES, HARVARD KENNEDY SCHOOL 1 (2011), available at

http://www.hks.harvard.edu/var/ezp_site/storage/fckeditor/file/pdfs/centers-

programs/programs/criminal-justice/ExecSessionStateCourts/ES-StateCourts-

GovernancePrinciples.pdf. 117 Id. at 4. 118 Id. at 6. 119 Court Organization, Judges, Court Governance, UTAH STATE COURTS,

http://www.utcourts.gov/knowcts/ (last modified Oct. 11, 2012). 120 An Overview of the Utah District Courts, UTAH STATE COURTS,

http://www.utcourts.gov/courts/dist/overview.htm (last modified Nov. 8, 2012). 121 An Overview of the Utah Juvenile Courts, UTAH STATE COURTS,

http://www.utcourts.gov/courts/juv/overview.htm (last modified Nov. 27, 2012). 122 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at i.



Judicial Branch.123 The Council seeks and considers input from all sources and then makes decisions based on the best interests of the system as a whole.124

It is this effective governance model that has enabled the Utah

Judiciary to make substantial changes to their business practices, partly in response to the economic recessions impact on state revenue and budgets. These changes have been made not only to ensure that access to the courts and services were not reduced as a result of budget reductions, but also to adopt a business plan that would allow the court system to emerge with

improved access, better services, improved use of resources, less delay, and better performance.

2. Applying the Decision-Making and Case Administration Principles for Judicial Administration

These principles address the manner in which courts process cases and interact with litigants.125 The Utah Judicial Council has taken steps to make sure that court interaction with litigants promotes access to the courts and access to justice.

The Council has developed programs to assist self-represented litigants.126 Self-represented parties seeking assistance can find information on the Utah Courts website.127 Any member of the public can obtain information and forms free of charge.128 They may also obtain assistance in

preparing a variety of court documents from the Utah Online Court Assistance Program (OCAP).129 For example, 40% of all uncontested divorce cases in Utah are filed through OCAP.130

In 2007, the Utah Judicial Branch opened its own centralized self-help

center.131 The center is located in the State Law Library;132 aided by one full-

123 Court Organization, Judges, Court Governance, supra note 119. 124 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at i. 125 NATL CTR. FOR STATE COURTS, PRINCIPLES FOR JUDICIAL ADMINISTRATION 7 (2012),

available at http://www.ncsc.org/Information-and-Resources/Budget-Resource-

Center/Analysis_Strategy/~/media/Files/PDF/Information%20and%20Resources/Budget%20R

esource%20Center/Judicial%20Administration%20Report%209-20-12.ashx. 126 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at i. 127 See Self-Help Resources / Self-Represented Parties, UTAH STATE COURTS,

www.utcourts.gov/selfhelp/ (last modified Mar. 21, 2013). 128 Online Court Assistance Program Document Preparation, UTAH STATE COURTS,

http://www.utcourts.gov/ocap/ (last visited Apr. 6, 2013). 129 Id. 130 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 32. 131 UTAH STATE COURTS, A DECADE OF PROGRESS: 2012 ANNUAL REPORT TO THE

COMMUNITY 9 (2012), available at http:www.utcourts.gov/annualreport/2012-

CourtsAnnual.pdf. 132 Nicole Farrell, Attorney Volunteers in Court, UTAH B.J., Mar.-Apr. 2010, at 24.



time and two part-time employees, it operates as a virtual site. Center staff guide self-represented parties through the forms and instruction on the Utah Courts self-help resources website by phone, through online chat functionality, and by e-mail.133

The Utah Judicial Branch has instructed librarians located in rural areas

on how people can access these resources on library computers.134 Self-represented litigants can attend classes conducted by the Administrative Office of the Courts (AOC) staff and local volunteer attorneys or view recorded classes that have been posted on YouTube.135 The Judicial Council

has also established a comprehensive court interpreter program in an effort to ensure that persons with limited proficiency in the English language have the assistance needed to enable them to communicate and understand what is happening in the courtroom.136 The judiciary provides interpreting services in more than sixty languages.137 In May 2011, the Judicial Council adopted a rule extending court interpretation to all those needing such

services in all types of court actions.138

To provide quality interpretation in rarely used languages and in remote areas of the state, the Utah Judiciary installed equipment in a few courthouses to enable remote interpretation. The judiciary is examining

whether litigants and witnesses can receive quality interpretation services while saving interpreters the time of traveling to courthouses and saving the state the cost of reimbursement for travel. The Utah Judiciary provided all the needed hardware and software to conduct remote interpretation.139

The Utah Judicial Council took additional steps to enhance case

administration, improve business processes, and reduce costs to litigants and taxpayers, including: the development of a mature ADR program; the reform of the discovery process; the evaluation of performance at all levels of organizations; and the implementation of a comprehensive electronic agenda, including a move to an electronic record.140

133 UTAH STATE COURTS, ANNUAL REPORT TO THE COMMUNITY 8 (2013), available at

http://www.utcourts.gov/annualreport/2013-CourtsAnnual.pdf. 134 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 33. 135 See generally Utah State Courts, YOUTUBE (Apr. 6, 2013),

http://www.youtube.com/user/UtahStateCourts/Videos?view=0. 136 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 33. 137 Id. 138 UTAH R. J. ADMIN. 3-306. 139 See STATE OF UTAH JUDICIAL COUNCIL, LANGUAGE ACCESS IN THE TRIAL COURTS OF

RECORD: 2010-2012, at 14, 18 (Nov. 19, 2012),

http://www.utcourts.gov/committees/CourtInterpreter/Language%20Access%20Report.pdf. 140 Utah is now using technology to enable litigants to electronically file and serve process

in their cases. The case management system for all four of the Utah courtsdistrict, juvenile,

justice, and appellateshares a single integrated database that incorporates all of the courts



3. The Keys to Reengineering Utahs Courts

The keys to reengineering Utahs courts include the following steps: (1) comprehensive reorganization of the clerk of courts duties in preparing work in an electronic environment, and to facilitate an enhanced focus on case management; (2) the statewide conversion to a comprehensive electronic record system; (3) conversion to a digital record of court proceedings;141 and (4) the reform of civil case discovery.142

4. The Comprehensive Reorganization of the Clerk of Court Operation143

The Utah Judiciary created a clerical structure designed to serve the future operations of the courts while attracting and retaining a more

professional workforce. This new structure was built on three core principles: (1) a structure to support future court operations in an electronic environment; (2) a team-oriented approach to clerical operations; and (3) a competency-based professional development advancement protocol. The court recognized that the move toward electronic payment and filing changed how clerical staff interacted with the public. As a result,

courts will need a more educated, highly-trained clerical staff and an appropriate structure to account for the positions increasingly professionalist role in fulfilling the mission of the courts.

Clerical work done by entry-level clerks in a paper environment now

requires advanced-level work in an electronic environment. Prior to this conversion, 88% of staff members were in entry-level positions; today 21% of staff members perform entry-level work. Clerks offices now see 54% of their staff doing advanced clerical work. Supervisors and senior management positions comprise 24% of the clerical workforce.144

5. The Statewide Conversion to a Comprehensive Electronic Record System145

The paperless electronic court record is having a major impact on the litigation process, speeding up the disposition of cases while reducing litigation costs.146 At the same time, the electronic record makes it possible

for the courts to develop and implement new business processes that

documents into a paperless case file. 141 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 6. 142 Id. at 7-8. 143 Id. at 10. 144 Id. at 8. 145 Id. 146 Id. at 10.



enhance quality and performance while saving time and money.

In Utah, instead of paper court documents being stored in paper files, documents are electronically filed into an electronic, digitally-certified

court record. Instead of clerical staff members running to the bank with checks and deposit slips, litigants are paying fines and fees electronically. Instead of clerks office staff members answering telephone inquiries on the status of case hearings and events, litigants and the public can access the case file themselves through an online inquiry system; litigants can also access confidential information through a secure online inquiry.147

6. The Conversion to a Digital Record of Court Proceedings and Managing Transcript Production148

Historically, court stenographers attended every court hearing making a verbatim record of every word spoken in the courtroom on a paper tape.

Then, if a transcript was needed the stenographic reporter, and only the stenographic reporter, could produce a verbatim transcript. Today, all of Utahs courtrooms are equipped with digital recording devices that store the audio and video record of proceedings on the courts computer network. A roster of certified transcribers, composed mostly of former court reporters, now prepare timely transcripts from the digital

recordings.149

B. Reengineering the Courts of New Hampshire

In March 2010, the New Hampshire Supreme Court, led by the then-Chief Justice John T. Broderick, established the Judicial Branch Innovation

Commission. They recruited state business and legislative leaders, as well as experts from the National Center for State Courts, to work with the judicial branch to identify changes needed to meet the increasing demand for court services while state resources are in severe decline.150

The Commission set forth the following principles, adopted by the

New Hampshire Supreme Court, to guide its work: New Hampshire courts must maintain and improve access to justice by New Hampshire citizens, families, and businesses. New Hampshire courts must sustain the rule of law while treating all citizens with fairness, respect, and integrity. New Hampshire must deliver timely, efficient, understandable, and cost-

effective access to justice.151

147 SUSKIN & HALL, REENGINEERING UTAHS COURTS, supra note 97, at 10, 11. 148 Id. at 13. 149 Id. 150 REPORT OF THE JUDICIAL BRANCH INNOVATION COMMISSION 5 (2011), available at

http://www.courts.state.nh.us/cio/innovationcomm/FinalReport.pdf. 151 Id. at 8.



The Final Report of the Innovation Commission to the Supreme

Court152 included twenty-three recommendations for implementation over ten years. The New Hampshire Supreme Court submitted the Commission Report to the New Hampshire Legislature which adopted many of the recommendations. The legislature determined that some of the

recommendations should be implemented immediately.153 As a result of the work of the Innovation Commission, the Supreme

Court, and New Hampshires court leaders, the New Hampshire Judiciary has restructured and reengineered its operations.

1. The Unification of the Probate Courts, District Courts, and Family Division

In 2010, the New Hampshire Judiciary had four trial court operations, each with its own judges, clerks, registers, and managers. These included the superior court, probate court, district court, and family division.154 Today, the New Hampshire Judiciary has two trial courts, the superior

court and the circuit court.

2. Judicial Restructuring for the Circuit Court

In 2010, the judges of each court heard and decided cases only in the court or division to which they were appointed. A process was developed

to allow judges to apply for certification in any division of the circuit court in which they can demonstrate competence or are willing to receive training in order to achieve competence.155 Today, district-division judges are certified to hear juvenile matters and domestic violence casesin 2010 these matters were in the family division. Similarly, probate-division judges are now certified to hear minor guardianship and termination-of-

rights casesin 2010 these matters were also in the family division. This certification gives clerks more flexibility in case scheduling.156 The New Hampshire Judiciary began moving judges to court locations

152 Id. at 3-4, 7. 153 See N.H. REV. STAT. ANN. 490-F:1 (2011). 154 N.H. JUDICIAL BRANCH QUARTERLY REPORT TO FISCAL COMMITTEE OF THE GENERAL

COURT ON IMPLEMENTATION OF RECOMMENDATIONS CONTAINED IN THE JUDICIAL BRANCH

INNOVATION COMMISSION REPORT 3 (July 1, 2011), available at

http://www.courts.state.nh.us/nh-e-court-

project/quarterlyreport_july2011/QuarterlyReport.pdf. 155 N.H. JUDICIAL BRANCH QUARTERLY REPORT TO THE FISCAL COMMITTEE ON

IMPLEMENTATION OF RECOMMENDATIONS CONTAINED IN THE JUDICIAL BRANCH INNOVATION

COMMISSION REPORT 3 (Sept. 30, 2011) [hereinafter N.H. JUDICIAL BRANCH QUARTERLY REPORT

TO FISCAL COMMITTEE], available at http://www.courts.state.nh.us/nh-e-court-

project/Quarterly-Report-of-All-Courts-October-1-2011.pdf. 156 Id.



commensurate with workload demands. These changes in judicial assignment will draw attention to caseload needs across the state and more effectively address backlogs in specific court locations.157

3. Management Restructuring for Circuit Courts

In 2010, the courts and divisions of the probate and district courts had fifty-two clerk or register management positions. Today, the circuit court has twenty clerk or register management positions and this management restructure resulted in annual savings of $2 million.158

4. The Circuit Court Call Center

The few remaining staff members in the circuit court need to be able to focus on the work that must be done in the courthouse, including the scheduling and noticing of cases and making the court record. The New Hampshire Judiciary established the Circuit Court Call Center to enable

courthouse staff members to focus on their work, to reduce the number of interruptions, and to enhance the timeliness of service to persons who call the courthouse seeking assistance.

Today a centralized call center, physically located in the state capital,

handles more than 2,600 calls each day.159 Staff at the call center promptly provide needed information to callers. Only 30% of the calls require transfer to the courts themselves. Call-center personnel assist self-represented and other callers by e-mailing them information and forms on how to proceed with their case. The center also sends information by United States Postal Service to callers who do not have access to e-mail.160

5. Consolidation of Management of the Superior Court

The New Hampshire Judiciary consolidated the management of six smaller Superior Courts, with annual savings of $300,000.161

6. The New Hampshire e-Court Project162

The Innovation Commission recommended that the New Hampshire Judiciary abandon paper-bound processes in favor of digital documents, records, and processes. The e-Court project envisions conducting

157 Id. at 4. 158 Id. 159 Id. at 5. 160 Id. at 4. 161 N.H. JUDICIAL BRANCH QUARTERLY REPORT TO FISCAL COMMITTEE, supra note 155, at 8. 162 New Hampshire Judicial Branch, NH e-Court Project Overview (Mar. 4, 2013),

http://www.courts.state.nh.us/nh-e-court-project/NH-e-Court-overview.pdf.



transactions electronically, seemlessly interfacing with the current case-management system. E-Court is to include: (1) e-File; (2) e-Payments; (3) e-Docket; (4) e-Schedules; (5) e-Citations; (6) e-Self-Help-Case Files; (7) e-Document Management; and (8) e-Signature-Notice.163 New Hampshire courts are fully engaged in implementing e-Courts in the coming years.

C. Reengineering the Courts of Minnesota

In 2008, the Minnesota Judicial Council created an Access and Service Delivery (ASD) Committee and charged it with examining the operations and structure of the Minnesota Judiciary and developing

recommendations related to the number of court locations, services to be provided in each court location, the hours of operation, the appropriate use of ITV, cost containment or reduction through technology and efficiencies to be gained in the way court business processes are handled . . . and consideration of appropriate out-sourcing.164 The ASD Committee evaluated proposed options using four criteria:

cost impactthe net savings to the court; feasibilityan assessment of possible constraints to implementation from all sources; service impactany changes in quality of services provided to court stakeholders; and time impacthow long it will take to implement the option and gain benefits.165

The ASD Committee determined that a fundamental, long-term

redesign of the court system was necessary. Recent initiatives, such as state funding and the new statewide case management system had provide[d] opportunities for increased efficiencies through centralization and greater public access to the courts through electronic service delivery.166 The court needs to re-invent itself: change the way it delivers services and provides

access.167 In 2008, the Council created a second ASD Committee to study longer term service delivery topics.168

163 NH e-Court Project Mission Statement, NEW HAMPSHIRE JUD. BRANCH,

http://www.courts.state.nh.us/nh-e-court-project/index.htm (last visited Apr. 8, 2013). 164 ACCESS AND SERVICE DELIVERY COMM., REPORT TO MINNESOTA JUDICIAL COUNCIL 3 (July

17, 2008), available at

http://www.supremecourt.ohio.gov/Boards/courtFunding/resources/Minnesota/Report.pdf. 165 Id. 166 Id. at 4-5 (footnote omitted). 167 Id. at 5. 168 ACCESS AND SERVICE DELIVERY 2 COMM., REPORT TO JUDICIAL COUNCIL, at v (Dec. 14,

2009), available at http://www.ncsc.org/services-and-

experts/~/media/files/pdf/services%20and%20experts/court%20reengineering/minnesota%20a

sd%202%20final%20report.ashx.



1. Strategies to Shape the Court of the Future

Over the past four years, the Minnesota courts have faced a funding crisis. Cuts to their budget taken from FY09 to FY11 totaled $18.5 million.169 The number of staff members in the trial courts was reduced by more than 200 positions, or 8.3% of the workforce.170

The Judicial Council, based on the work of the ASD Committees,

adopted strategies to respond to the funding crisis and to shape the court of the future. These strategies included both restructuring the management of the trial courts,171 and reengineering workflow in an electronic environment.172

New technologies were developed to offer access to all of the courts

services from every court location, or in some cases, from any location via the internet, telephone, or other electronic means.

2. Reengineering the Minnesota Courts Through Centralization and Automation173

The Judicial Council and State Court Administrators Office have reengineered their business processes by implementing a number of initiatives, taking advantage of the opportunities opened up to them in their new electronic environment.174

The Minnesota Judicial Branch has centralized payments through its Court Payment Center (CPC).175 Work that was previously handled from

169 See COSCA BUDGET SURVEY, supra note 15, at 36. 170 Id. 171 Some districts have chosen to restructure by reducing the number of court

administrators in the district. Instead of maintaining one court administrator per county,

districts are operating with court administrators who manage the courts of multiple counties.

Some districts have agreed to share a single district administrator. In addition to saving

money, this arrangement makes collaborations between multiple districts possible, leading to

further reductions of costs through economies of scale. 172 The judicial branch has begun implementation of an ambitious multi-year

transformation project to move the court system from a paper centered system to an electronic

records environment. COSCA BUDGET SURVEY, supra note 15, at 42-45. The project, called

eCourtMN is now leveraging existing resources to invest in technology initiatives which

include e-Filing, an enhanced case management system, an electronic document

management system and electronic workflow. Id. Rather than filling vacant positions, the

Branch is using salary savings along with other funding sources to create and make needed

eCourtMN enhancements. Id. 173 Id. 174 Id. 175 See The Minnesota Court Payment Center (CPC) Process Considerations for Law

Enforcement, MINNESOTA JUDICIAL BRANCH,

http://www.mncourts.gov/Documents/0/Public/Justice_Agency/Process_Considerations_for_L



the courthouses in the eighty-seven counties around the state was moved to a new, centralized virtual center using fewer, less expensive staff working from their home offices. Service and quality have improvedcourts now deposit payments on the day received. The response to inquiries is quick and consistent, and no longer depends on the location of

the caller. Litigants can pay all fines at one location, twenty-four hours a day, seven days a week. This reengineering effort has resulted in faster citation processing, increased collections, and additional levels of service, despite the courts now operating with 10% fewer staff members.176

A second initiative was the centralization of collections. The Minnesota

Judiciary adopted and implemented standard statewide processes and policies, enhancing the collection of fines and fees due to the state. As a result, total collection revenue increased from $4.68 million in FY2009, to $20.23 million in FY2012.177

A third initiative was the centralization of assistance to self-

represented litigants: the centralized self-help center. Through this initiative, the judiciary provides a web-accessible self-help center (SHC)178 that includes explanations, required forms, and tutorials on the most common types of court actions. For persons who do not have internet

access, every courthouse has a public access terminal that anyone can use to access this information. In 2011, the SHC was accessed 693,000 times, an increase of approximately 18% over the prior year.179 The SHC provides assistance to persons located in all corners of the state. The SHC uses document-assembly software to enable persons to complete court forms by answering questions about their case. The SHC is now working to

incorporate this software into the courts e-filing system.180 The last initiative was the centralization of jury management. Prior to

2009, the Minnesota jury management system was loaded on 89 different databases, and juror information on each database was maintained by jury staff at each court location.181 Under the Consolidated Jury Database Project, the Minnesota Judiciary used new automated technologies for

summoning and qualifying Minnesota citizens for jury services. The project

aw_Enforcement.pdf (last visited Apr. 8, 2013). 176 Klaversma & Suskin, supra note 97, at 14. 177 Id. at 16. 178 Self-Help Center, MINNESOTA JUDICIAL BRANCH, http://www.mncourts.gov/selfhelp (last

visited Apr. 3, 2013). 179 REPORT TO THE COMMUNITY: THE 2011 ANNUAL REPORT OF THE MINNESOTA JUDICIAL

BRANCH, MINNESOTA JUDICIAL BRANCH 6 (2011),

http://www.mncourts.gov/Documents/0/Public/Court_ Information_Office/AR_11_Final2.pdf. 180 Id. at 17. 181 Kalversma & Suskin, supra note 99, at 18.



also centralized and outsourced the Juror Summons/Questionnaire; developed an online juror qualification questionnaire; eliminated prepaid postage on returned juror questionnaires; and centralized, automated, and outsourced juror postcard notices.182 As a result, the courts reduced jury operating costs by saving $103,500 per year in postage, improved staff

efficiency by saving four positions, and improved juror service by enabling 45,000 jurors, or 26%, to respond online.183

D. Reengineering the Courts of Vermont

In May 2008, the Vermont Legislature called upon the Vermont

Supreme Court to address a number of issues: the consolidation of staff and staff function; the regionalization of court administrative functions; the use of technology to reduce expenditures and improve access; the reallocation of jurisdiction between courts; and a reduction of 3%, or $1 million, from the state judiciarys general fund budget.184

The Supreme Court established a fifteen-member commission, chaired

by a justice of the Supreme Court, that included: judges; court administrators; current and former legislators; executive-branch department heads; the secretary of state; a representative from the business community; and attorneys.185 The Commission analyzed the entire court

system to provide more efficient and effective ways of serving Vermonters while identifying at least $1 million in savings. The surveys and focus groups involved more than 800 participants, including many court users, who offered more than 360 suggestions and proposals.186 The Commission made more than a dozen recommendations, which, if adopted, would permanently reduce Vermonts funding of its Judicial Branch by $1.2

million and reduce each countys share of the judicial budget, funded by property taxpayers, by an additional $1 million.187

The Vermont Supreme Court adopted a set of principles describing their values to guide their reengineering efforts: (1) Judicial Branch judges

182 See Juror Qualification Questionnaire, MINNESOTA JUDICIAL BRANCH,

http://www.mncourts.gov/?page=3603 (last visited Apr. 8, 2013). 183 Klaversma & Suskin, supra note 97, at 19. 184 VT. COMMN ON JUDICIAL OPERATION, FINAL REPORT TO THE LEGISLATURE 1 (2009),

available at www.vermontjudiciary.org/commissionLibrary/Final%20Report%20-

%20word.pdf. 185 See Commission on Judicial Operations, VERMONTJUDICIARY.ORG,

http://www.vermontjudiciary.org/MasterPages/WhatsNew-CommissionJudicialOps.aspx (last

visited Apr. 3, 2013). 186 VT. COMMN ON JUDICIAL OPERATION, FINAL REPORT TO THE LEGISLATURE, supra note

184, at 1. 187 Id. at 43.



are fair, impartial and competent, and composed of men and women of integrity; (2) the Supreme Court operates the state court system as a unified system; (3) [t]he Supreme Court manages, controls and is accountable for all resources; (4) the Judicial Branch is organized with minimal redundancies in structure, procedures and personnel, and has an

efficient balance of workload among courts; and (5) Judicial officers issue timely decisions that do justice for the litigants. . . .188

The Vermont Judiciary used these principles to analyze the host of recommendations produced by more than 100 focus groups and fashion a

final set of strategies. Vermont, working with the Bar, the public, and the other branches of government, implemented a number of steps to restructure its court system. In June 2010, Governor James Douglas signed Act 154, legislation that restructured the Vermont Judicial Branch. 189 As a result, Vermont moved from multiple trial courts to a single superior court with four divisions: civil, criminal, family, and probate. The superior court

is now administered by the Vermont Supreme Court on a county basis, with staff support directed by a single manager. The manager, in turn, is appointed by the court administrator and a presiding judge designated by the administrative judge for trial courts. Vermont moved from a mix of county and state decision makers, determining the pay and benefits of court staff and how they would be managed, to a state-wide system of

comparable pay and benefits for all employees. Vermont also moved from a mix of county and state funding of the courts to state funding. Revenue from small-claims filing fees moved to the States General Fund as Vermont took responsibility for court staff costs borne by the counties. This offset a portion of the cost of converting county employees into state employees. With the creation of a single superior court with four divisions

and one court manager, the number of middle management positions was reduced.

E. Reengineering the Court of Oregon

The Oregon Supreme Court adopted a critical principle: the courts

would continue to process and resolve all categories of cases. This set the adjudication function of the courts as the top priority. Consequently, many administrative services, which were not as high a priority, were eliminated.190

188 VT. COMMN ON JUDICIAL OPERATION, INTERIM LEGISLATIVE REPORT 7 (2009), available at

http://www.vermontjudiciary.org/commissionLibrary/Interim_Legislative

_Report_FINAL.pdf. 189 An Act Relating to Restructuring of the Judiciary, No. 154, 1, 2010 Vt. Acts & Resolves 4

(revising VT. STAT. ANN. TIT. 4, 1 (2010)). 190 See Kimberly Melton, State Superintendent Susan Castillo Criticizes a Proposal to Eliminate



Over the past four years, the Oregon courts were confronted with

major budget reductions.191 They were forced to make an 8% reduction in the number of staff members working in the trial courts.192 They reduced hours of operation and delayed jury trials.193 The Oregon courts froze the salaries of judicial officers and court staff.194

The Oregon courts took a number of measures to positively respond to their crisis. They secured a 100% increase in technology funding, enabling them to implement their statewide integrated software system, Oregon eCourt.195 This integrated system comprises e-Filing, an electronic

document management system, and electronic workflow.196 Courtroom staff members make entries of court proceedings into the courts management information system in real-time and print and distribute notices of hearings and orders to the litigants, saving the time and expense of subsequent data entry and noticing.197 The Oregon courts are transitioning to the digital recording of court proceedings.

Oregon also developed virtual self-help centers for self-represented litigants and developed a web-based information center to provide public access to court records.198 Courthouses and clerk management positions were consolidated;199 and staff was reallocated.200 The Oregon courts

created a centralized call center and an integrated hub that enables the electronic payment of fines and fees.201 They also centralized the collections process.202

F. Reengineering Efforts in States Throughout the Country

A number of additional states are taking steps to restructure their

Oregon Writing Assessment, THE OREGONIAN,

http://www.oregonlive.com/politics/index.ssf/2011/05/state_superintendent_susan_cas.html

(last updated May 19, 2012, 9:32 PM). 191 See COSCA BUDGET SURVEY, supra note 15, at 56-57. 192 Id. at 56. 193 Id. 194 Id. 195 See id.; David Factor, Oregon eCourt Update: Better Access, Better Information and Better

Outcomes are on the Way, OR. ST. B. BULL. (June 2012),

http://www.osbar.org/publications/bulletin/12jun/courtreport.html. 196 See COSCA BUDGET SURVEY, supra note 15, at 56. 197 See About Oregon eCourt: The Vision, OR. JUD. DEPT,

http://court.oregon.gov/oregonecourt/About.pages (last visited Apr. 8, 2013). 198 See COSCA BUDGET SURVEY, supra note 15, at 56-57. 199 Id. at 57. 200 Id. 201 Id. 202 See id.



systems and adopt new business processes to enhance quality and services while reducing costs.203 Two-thirds of the states have taken steps or will take steps in the coming years to implement versions of eCourt, including the implementation of electronic filing, the creation of electronic records and case files, and the ability to pay fines and fees electronically.204 One-

third of the state court systems have developed virtual self-help centers to assist self-represented litigants.205 Half the states are transitioning from stenographic court reporters to producing the courtroom record and transcript by persons who monitor digital audio recording equipment.206 More than half of the state courts are conducting the arraignment of incarcerated defendants through videoconferencing.207 One-third of the

states are using remote videoconferencing of interpreters to provide quality interpretation for those with limited English proficiency.208

In efforts to restructure, at least eight states are reallocating judges to districts based on weighted caseload measures. Half the states are reallocating trial court staff. At least seven states have consolidated or reduced the number of trial court management positions. In efforts to

centralize, centralized call centers are being established in at least ten states; centralized payment centers are being established in at least seven states; and centralized collections processing is being established in at least nine states.

V. Responding to the CrisisEngaging the Legislative and Executive

Branches

State judicial branch leaders who restructured and reengineered their court systems in accordance with the Governance Principles, as well as with the Decision-Making and Case Administration Principles, placed themselves in the position of working with legislative branch leaders to

fund the courts in accordance with the Court Funding Principles. Yet, with regard to the Principles for Developing and Managing the

Judicial Budget, one-third of the state legislatures do not consider Judicial Branch budget requests . . . submitted by the Judiciary.209 Only one-quarter of the state legislatures provide judicial branch leadership the authority to allocate resources with a minimum of legislative and