Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Courts at the Tipping Point: Tight Funding Imperils Justice Function

Rising demand for services and challenging economic conditions together jeopardize the ability of Minnesota’s judicial infrastructure—including courts, public defenders, prosecutors, and legal aid—to meet constitutional standards and the expectations of the public.  In this, the first of three articles examining fiscal and public pressures on the system, we explore impacts on the courts.  Subsequent articles in February and March 2009 will take a closer look at public defense and legal aid.

Earlier this year, 2nd Judicial District Chief Judge Kathleen Gearin was presiding over a product liability case involving allegedly defective artificial heart valves. She came to a hearing and found that copies of the most recent motion filed with the court were not yet available. That, she said, is becoming a common problem.

She prefers to have motions days in advance so she can read them, think through the complicated arguments, and prepare her questions. The missing paperwork has real consequences for justice.

“I think the quality suffers,” she said. “The decision is slower getting out. I have had to continue trial dates because of this.”

This problem is replayed in courtrooms around the state. Facing tight budgets, courts are leaving more clerk positions vacant. Court administrators hobbled with fewer staff say it creates delays in processing judgments, updating computer records, and getting documents to judges’ files. And the delays spawn inquiries that further slow the process.

To keep a hearing moving, some judges send their law clerks to look for the missing material. Sometimes they find it and sometimes they don’t. “It could be still on someone’s desk or in the file room,” said Michael Moriarity, 10th District administrator. “The attorneys have learned: You bring a courtesy copy to the hearings.”

Missing motions may be the least of the problems facing the courts. Court calendars are backing up, particularly on the civil side. That creates hardship for people trying to recover money or settle other disputes. Three districts have reduced open hours for public service windows to free staff time for filing and data entry, but that affects customer service. Public defender cuts are compounding criminal court delays.

To help courts cope with these challenges, the Judicial Branch has asked the state for a 10.5 percent increase for the next biennium (see “Courts Budget by Numbers” sidebar). That request will vie with other critical needs—K-12 education, healthcare, and basic infrastructure—at a time the state faces a significant deficit.

Minnesota Supreme Court Chief Justice Eric Magnuson and others will point out that the Judicial Branch is an independent and coequal branch of government, not just another state program. It has constitutional duties to assure a speedy and public trial for those charged with a crime. It resolves everything from thorny business disputes to divorces. It also serves as a check on the other two branches of government.

In his Oct. 6 budget letter to Gov. Tim Pawlenty, Magnuson made his opening argument for the increase:

“The judicial branch is unable to turn away those who enter the courthouse to seek our services,” he wrote. “… We now find ourselves at a tipping point where action is needed to avoid major service disruptions in the next biennium that will seriously jeopardize the justice function.”

Cracks in the System

Public defenders, prosecutors, and legal services staff know first-hand the courts are hurting. Attorneys who haven’t been to court recently might be less aware. Minnesota State Bar Association President Mike Ford sees this as a challenge for the Association:

“We have to make sure that the lawyers in my office and offices throughout the state recognize that they all have a stake that the courts are properly funded,” Ford said, noting the courts are only 2 percent of the state budget. “We are not talking about major dollars. We are talking about major impact.”

The Judicial Branch’s vacancy rate is 9 percent, nearly one in ten positions open. Call people working in the system and it doesn’t take long to get stories about emerging problems.

Jane Glander, the guardian ad litem (GAL) manager in the 3rd Judicial District in southeastern Minnesota, said delays in processing GAL orders jeopardize vulnerable children in termination-of-parental-rights cases, divorces, and other cases. Courts used to process orders within a day. Now it takes a week or longer. “In that lost amount of time, we could have children who are possibly in volatile situations,” she said.

She attributes the delays to clerk shortages. In one extreme example, Glander said a judge ordered the GAL office to investigate a termination-of-parental-rights case on March 20 and required a report in 30 days. Her office didn’t get the order until April 21.

“Without a signed order in our possession, we can’t contact the schools or physicians or even children,” Glander said. “Every delay the court makes is hard on families and kids.”

Darielle Dannen, an attorney for the nonprofit legal services program Volunteer Lawyers Network (VLN), said 4th District conciliation court calendars are stretching out “ridiculously long.” James Ford turned to VLN when his landlord refused to return his $300 damage deposit after he moved. His conciliation court Summons and Complaint were filed May 28. The hearing date was October 8. His pro bono attorney helped him get a judgment, but Ford said he doesn’t expect to collect until December.

The $300 might seem small, but Ford is disabled and says he lives on less than $700 a month. “It has been kind of frustrating,” Ford said, saying the money could have helped with moving expenses and basics, such as a bus card.

A VLN phone intake worker said conciliation court delays benefit slumlords and others who delay making payments. In a memo, the caseworker said several callers have decided not to go to court when they learned about the long wait time.

Washington County Attorney Doug Johnson said his attorneys have arrived for bail hearings to find the court doesn’t have a copy of the criminal complaint, even though it was filed. The court has released defendants, including one with a DWI charge, because it didn’t have a complaint. His office has to refile charges and bring the defendants back later.

“That is the exception. But because you have fewer people handling these cases, something is going to get overlooked once in a while,” he said.

Type, File, Repeat

To understand the delays and pressure on the court system, start with the clerks. Clerks are the court’s backbone. They staff counters and phones. They process payments and fines. They help in court. They process a mountain of paperwork.  And after a judge issues an order, they type it into MNCIS, the state’s computerized court information system.

The warning signs are not obvious. The staff sits quietly at computer stations. But they have more files waiting than they have time to process and file. Three judicial districts have closed public service windows four hours a week just to give staff quiet time to catch up on the backlog.

The 4th District closes windows Wednesday afternoons. Civil Court Operations Manager Lynn Fuchs gave a behind-the-scenes look as clerks worked on the default judgments backlog.

Here’s what they have to do to process these fairly straightforward cases.

Step 1: Date stamp the documents and examine them for completeness. (If needed, call the party to clarify questions.) Sort the documents and get them to data entry.
Step 2: Type the case information into MNCIS: attorney names, plaintiffs’ and defendants’ names, their “also known as” names, types of documents filed, etc. (Sound easy? Fuchs said a typist typically goes through 45 data entry screens per case.) Process the payment. Get a computer-generated case number. Hand-write that number on each document. Put everything in a file. Give the file to the judgment clerks.
Step 3: Enter the judgment into MNCIS. Verify that name spellings and the judgment amounts are the same on the affidavit and complaint. Double-check the costs-and-disbursement math. Check for service. Print out the judgment and add it to the file.

Work is staggered. But time studies say that process should take 20 minutes per case, Fuchs said. With the bad economy, Hennepin County’s default judgments in 2008 are up 57 percent, reaching 8,548 filings by the end of August. For those eight months of default judgments alone, that’s 2,850 hours of nonstop data entry—not answering phones, taking questions at the counter, or performing other regular tasks.

Time demands vary by case type, but multiply those data entry and filing tasks over multiple divisions and courts, and the time pressure mounts.

Errors, Frustration, and Delay

Errors are unavoidable, but minimized if staff has time to double-check their own work and that of colleagues. Reduced staff means increased error rates.

On this day, Ulyssia Smith, senior court clerk, is one of several clerks entering default judgments. There are hundreds of files waiting on the shelf. On Oct. 15, she is working on a file dated Aug. 29.

Smith catches a misspelled name on the computer. If that had slipped through, the sheriff couldn’t collect on the judgment, and the process would have started over: vacate and reenter. With the backlog pressure, Smith said she is seeing more typos.

Mark Thompson, 4th District administrator, said to balance the books, open positions have been left unfilled; the district’s vacancy rate is now 7.5 percent. He discussed errors he attributes to overworked staff throughout the courthouse.

In one, staff coded the wrong conviction in a criminal file. It didn’t get caught. When an employer did a background check, the employee’s crime looked more severe than it was. That individual got fired from a professional job.

Some warrants are not getting quashed in a timely manner, he said. A dozen times this past year, people have had their cars wrongfully impounded and towed. They had paid their tickets, but data entry hadn’t caught up to remove a warrant. (In these cases, the county pays the $200-$400 in fines.)

In yet another situation, a man spent more time incarcerated than he needed to because of a data entry error.  “It was a newer clerk because we had a lot of turnover,” Thompson said. “We didn’t have time to check it. I expect we will be involved in other circumstances like that—that produce litigation and loss of confidence in the courts.”
Courts Respond, At a Cost

When court staff can’t keep up with the volume of cases, administrators give top priority to those matters that affect individual liberty and personal safety, such as in-custody criminal cases and orders for protection. Minn. Stat. 631.021 sets speedy trial objectives for criminal matters; civil cases necessarily must take lower priority.

The Minnesota Judicial Council, the body that oversees policy for the state court system, has adopted “timing objectives” for civil cases. Yet those deadlines are aspirational, not mandatory. That means lower priority civil cases see longer delays. And delays create more inefficiencies.

A Sept. 30 memo from Lawrence Dease, 2nd Judicial District administrator, to Chief Judge Gearin, explains how conciliation court delays snowball. As case initiation, judgments and transcript processing take more time, filing parties call the court more frequently for updates. Those calls keep clerks from doing the work more efficiently.

The criminal side is affected, too. Entering citations and complaints used to take a day. The backlog is now 15-30 days, Dease wrote. Court document filing has stretched from one day to 5-12 days.

Courts are looking for new ways to save money, free clerks’ time, and reduce delay. (See sidebar.) In the 3rd District, some counties are doubling jury terms from two months to four. That saves staff time issuing juror summons and doing orientation.

In Hennepin County, the 4th District Court has eliminated arbitration services and family-court-supervised visitation services. Earlier this year it reduced staff at the Domestic Abuse Service Center. It has cut staff for walk-in services at the nationally recognized Self-Help Center.

Statewide, courts have reduced delays by increasing pro se services. The courts have improved website information for pro se litigants and created a pro se phone line, routing calls through the Self-Help Center. This is smart business. Pro se clients are less prepared in court and their cases take longer to resolve. Getting them up-front help often saves court time.

But these services also struggle to keep up with demand.  Susan Ledray, the 4th District’s pro se services manager, said she has three staff working the call center. It’s so busy even the county-funded supervisor is answering phones. “We are losing calls,” she said.  Callers “are getting a busy signal.

Jean Lastine, executive director of Central Minnesota Legal Services, sees the funding pressures surface in other ways. Courts are denying requests for in forma pauperis orders for allowable expenses, she said. Further, her lawyers have been questioned about whether they really need a court date for motions they want to bring.

James Swenson, 4th District chief judge, said almost all service cuts have fallen disproportionately on the poor. “That is demoralizing to all of us who take pride in our mission statement,” he said, which is to provide “equal access for the fair and timely resolution of cases and controversies.”

Defender Cuts Compound Delays

The State Pubic Defender’s Office made significant staff cuts because of deficits, as costs have grown faster than funding. Those cuts not only affect client services but the entire criminal justice machinery.

Second District Chief Judge Gearin recounted a recent day where she had a series of probation violation appearances. The public defender had to be three places at once. She and the prosecutor, defendants, six probation officers and several victims waited for more than an hour for the public defender to appear. “Then we had to take a recess because the public defender needed to talk to a few of them,” Gearin said.

Delays due to shortages of public defenders are nothing new, but people interviewed say it’s getting worse

This year, the Board of Public Defense cut 53 of its 425 lawyers, or 12 percent, said Kevin Kajer, chief administrator. That’s not counting positions it was authorized to fill but couldn’t, due to funding shortages.

Dick Fasnacht, administrator for the 5th Judicial District (southwestern Minnesota), said his court staff is down 10 percent from 2003 levels, but the biggest complaint he hears from judges is the lack of public defenders. It hurts the problem-solving drug courts in particular.

Drug courts are time-intensive and require long-term, post-adjudication support from justice partners—the county attorneys, public defenders, probation officers and others. Because of staff cuts, the Public Defender’s Office has dropped nonmandated services, specifically the drug court’s post-adjudication work and parent representation in Children in Need of Protective Services cases.

Janelle Kendall, Stearns County Attorney, said public defenders in her county stopped doing misdemeanor arraignments. This creates a double bind. To get an attorney, some defendants will choose pretrial instead of resolving the case at arraignment. That puts more time demands on the court. In other cases, Kendall worries that defendants who want an attorney are giving up their rights because they don’t want to return a second day.

Public Defender John Stuart said in some courts where misdemeanor cases used to get resolved in two months, four to six months are now required for resolution. “We will do a good job for each client as they come up,” he said. “If it slows down the court system, we are awfully sorry.”

Looking Ahead

Each judicial district has felt the financial pinch in different ways. Each eyes the coming budget talks with concern.

Since the 1990s, the courts have gradually transitioned from county funding to a state-funded system. (See “State Takeover” sidebar.) The timing and level of service cuts has varied.

Gerald Winter, district administrator of the 1st Judicial District, said his counties have never had a specialty program such as a court-supported Domestic Abuse Service Center. “We didn’t have all the programs that Ramsey and Hennepin had,” he said. “We didn’t have them to cut.”

Tim Ostby, administrator for both the 7th and 8th districts, said his districts have had unfilled vacancies for years. He recalled the budget crisis earlier this decade when the Judicial Branch got cut 3 percent. Today, of the 8th District’s 11 judges, six share law clerks and two don’t have court reporters.

Because of earlier belt-tightening, they didn’t lay off staff or close public windows as some districts had to this biennium, he said. “At this point, we are preparing for what we think will be difficult budget times in the next biennium and beyond.”

And district administrators are calculating where to cut next, if funding comes in below requests. Winter said simply, “If we don’t get more money, we will be laying off people.”

Fourth District Administrator Thompson said flat funding could mean closing a suburban Hennepin courthouse next year: Southdale, Brookdale or Ridgedale.

“So we would cut one or two of those and then I would have to cut back the pro se service center and cut back the Domestic Abuse Service Center even further,” he said. “Those are the only places I could absorb it without hitting more court functions or closing more [window] hours.”

Washington County Attorney Johnson said people don’t realize the problems until they need to use the court system.

“It is going to take longer for cases to proceed,” he said. “It is going to take longer to get documents. It is going to take longer to [get] judgments.”

“This is going to affect every lawyer in the state of Minnesota.”

Courts Budget by Numbers

The Minnesota Judicial Branch will cost $307.5 million this fiscal year, about 2 percent of the state’s budget. The courts are asking the governor for a 10.5 percent increase over the next biennium. With the state facing a deficit in the billions of dollars, that’s going to be a tough sell.

The request includes a $54.3 million biennial increase for the Judicial Branch, the amount it says it needs to maintain core services and create efficiencies. It includes a $10.2 million biennial increase for justice partner agencies (the Board of Public Defense, county attorneys, legal aid, and other organizations as described below.)

Here are six key points the Judicial Branch will make and a percentage breakdown of the request.

1. Salary, health insurance and pension costs have risen faster than state funding: Nearly 60 percent of the requested increase is for estimated growing costs for current staff. The courts have left positions unfilled to save money. The vacancy rate is now nearly one in ten. The request does not add new positions or fill vacancies.
2. Mandated service costs are rising. Costs for court interpreters, psychological testing, guardians ad litem (GALs), and other mandated services are increasing faster than personnel costs. About 14 percent of the total increase covers mandated services.
3. Problem-solving courts have expanded: The state’s problem-solving courts, such as drug courts, were created to reduce incarceration costs and hasten rehabilitation of offenders. These are labor-intensive, requiring post-adjudication support from county attorneys, public defenders, probation, and other partners to keep the offender on track. The budget request asks for a $1.9 million increase for the courts and a $6.2 million increase for partner agency grants, or 13 percent of the total increase.
4. Better technology saves costs long-term: Approximately $5.6 million or 9 percent of the court’s requested increase is for technology upgrades for efficiency.
5. Service demands are growing: When the economy goes down, foreclosures, collections, and other cases go up. Workload studies say the state is already short seven trial court judges and by the end of fiscal year 2011 it will need 17 new judges, about a 6 percent increase. The budget request seeks no new judges.
6. Civil legal services have increased needs: The court seeks an added $4 million for civil legal assistance for the poor, or 6 percent of the increase. (These are pass-through dollars to agencies such as legal aid programs.)

Source: Judicial Branch interviews and documents.

State Takeover: A Quick Retrospective

State Court Administrator Sue Dosal looks at the court’s tight budget and sees the impact of back-to-back recessions. “That’s the primary problem,” she said. “The economy has thrown us all for a loop.”

Fourth District Administrator Mark Thompson looks at the court’s budget and sees flawed public policy. The state takeover of courts shifted funding from county property taxes to the state’s more volatile mix of sales and income tax, he said. It hurt counties like Hennepin with a history of well-funded courts.

“We took money from the metro areas and gave it to the rural areas,” he said. “That’s my opinion of what happened.”

People will disagree on the policy and its impact, but with the current funding squeeze, it’s worth a quick refresher on how Minnesota arrived at its method of paying for justice.

For most of Minnesota’s history, county boards funded the courts. Services varied considerably, depending on the county’s property wealth and political will. State leaders found service disparities unacceptable. Starting with a 1990s pilot program in the 8th Judicial District, the state began taking over court funding district by district. By July 2005 courts were fully state funded.

In his Oct. 6 budget letter to Gov. Tim Pawlenty, Chief Justice Eric Magnuson recounted the rationale for state funding and summarized the current problem.

“It is imperative that citizens of this state have access to similar levels of judicial services regardless of where they live to give meaning to our belief in equal justice under the law,” Magnuson wrote. Yet while the state had equalized court funding, the state’s ten judicial districts “are unfortunately now equally underfunded.”

County-by-county impacts have varied. Paul Maatz, 9th District administrator, said northwest Minnesota added nine problem-solving courts in three years, a real benefit to rural areas that lacked such services. Drug court, the most common problem-solving court, tries to end the revolving door of addiction-driven offenses by using the court’s influence to get defendants to start and continue treatment. It’s a time-intensive process that includes regular post-adjudication monitoring.

“Without state funding, we wouldn’t have the number we have now,” Maatz said.

The state takeover also meant that courthouse staff became state employees, not county employees. Michael Moriarity, 10th District administrator, called the state takeover “a mixed bag” for his eight counties in eastern Minnesota. Some county court staff benefited from better pay and health insurance.

However, Washington County’s court services are another story. “We have unfortunately brought them down,” Moriarity said. “They have lost some of their staff. … They sent their courts into state funding well-funded and well-staffed and in the course of three years, they are seeing reduced hours.”

SCOTT RUSSELL is a freelance writer and reporter resident in Minneapolis.  A regular contributor to, he has previously written for Bench & Bar on topics including unbundled legal services and working with pro bono clients.  This is the second of three articles he is preparing on challenges facing Minnesota’s judicial system.

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