With the end of his tenure as chief justice in view, Chief Justice Magnuson describes the “whole new normal” environment in which Minnesota courts now operate, identifying both challenges and innovations put forward in response, while reflecting on the need for the judicial system to “hold the line” against growing threats to the courts’ independence and impartiality.
Thank you very much for that introduction, and thanks to all of you who are here today for giving me the opportunity to once again discuss the state of the judiciary.
Unlike my first “State of the Judiciary” speech, I can now say that I know firsthand the state of the Minnesota judiciary. In the last two years, I have put thousands of miles on my truck traveling around the state and meeting with judges and court employees. This is actually one of my favorite parts of the job—chatting with people who have been around for years, who know their jobs intimately and care deeply about what they do.
At last count, I have been in more than 35 district courts, lots more than once, and spent a lot of time hearing from our front lines. People can be a little apprehensive at first, but when I shoo the managers out of the room, there’s no holding back. “Candid” does not begin to describe how they express their passionate feelings about their jobs.
A few weeks ago, I was meeting with a small group of court employees and one opened the session by asking, “Why should we listen to anything you have to say? You’re leaving.” Some of you here today may be wondering the same thing, quite frankly, but have politely kept those musings to yourself! Thank you.
I will begin by telling you what I told the court personnel around the state: implicit in that question is the notion that when a new chief justice comes in, everything changes. But it won’t. Chief justices are not royalty, and they do not wield the supreme administrative authority many people imagine they do. They lead the branch through collaboration, and team effort, a lesson I learned early in my tenure.
Since 2005, the Judicial Council has been the key decision-making body for the courts. That group of 25 district and appellate court judges and administrators, alongside court staff across the state, has been making the decisions about our new initiatives, our budgets, business practices, and technology investments. And that group will still be here when I am not.
My able and distinguished colleagues on the Minnesota Supreme Court, with incoming Chief Justice Lorie Gildea at its head, will still be here. Our diligent and efficient court of appeals will still be here. Our hard-working and nationally recognized judges and staff in the district courts across the state will still be here, as will be our award-winning State Court Administrator’s Office.
And our strong partnership with all elements of the criminal justice system and our great friends in the bar will still be here. So today, if you ask me what the state of our judiciary is, my first answer is that it is in good hands. My second response is that the judiciary is wrestling with a whole new normal.
A Whole New Normal
Times have changed dramatically since I first clerked for Chief Justice Sheran and Chief Judge Amdahl back in the 1970s. We had Selectric typewriters, not computers. Letters and memos had not been replaced by email. Things moved more slowly because they could not move any faster. Now, communication is nearly instantaneous, making us all more connected, for better or worse.
Courts were different then, too. Some may pine for the old days, but to meet the demands of modern society, courts have had to change. The trick has been and will be making change for the better, and not just for the sake of change.
We have made some impressive improvements for court customers in just the last few years. Many are much-needed technological advances. In 2008, we completed the transition to the Minnesota Court Information System, MNCIS. Today we are sharing real-time case information dating back to the 1970s with our criminal justice partners. More than 50,000 data exchanges are occurring each day between judicial branch computers and our partners’ information systems.
We are using technology to implement e-charging and e-complaints—the electronic filing of charges and complaints by prosecutors directly into the court case record system, and we are using it to expand the ability of attorneys to e-file their cases as well.
Over the last year, more than 240,000 criminal and traffic cases were filed electronically. That number will grow significantly in the coming years as more law enforcement agencies and prosecutors build their connections to MNCIS.
The internet and MNCIS have allowed us to break free of the geographic limitations on who does what work. Data can be processed as efficiently, or more efficiently, in one location rather than several. We no longer have to have staff at a particular physical location in order to do the work of the court.
One of the most visible examples of this is the Virtual Court Payment Center. Until recently, each county had staff manually process payable citations like traffic tickets, then calculated—by hand—the distribution of that fine to the appropriate local, county and state entities. We will be automating and centralizing this function, so that by next year 1 million payable citations are handled at a virtual payment center staffed by employees located throughout the state. The payment process is more automated and convenient for the user, giving Minnesotans the options of paying the fine in person, by mail with a check, or by credit card over the phone or internet. Court computers now automatically calculate the distribution of fine revenue. The whole effort will save the courts about $2.7 million a year and free up more than 50 court employees for other case processing. Eighty-five counties will be on board by the middle of 2011, and Hennepin and Ramsey as scheduled in the next biennium.
Technology is also central to our reform of the statewide jury management system. We have consolidated 87 separate county jury-management databases into a single statewide system, implementing a web-based service for questionnaires, automating juror payment, and outsourcing the printing, processing and mailing of summons.
We have been careful to try to ensure that our centralization does not result in endless menu choices and the inability to connect with a real person. Technology can be an incredible tool to streamline certain administrative aspects of our work, but our public interfaces must continue to serve citizens’ many different needs and questions.
Serving Citizens’ Needs
Technology is not the only change underway in our judicial branch. Another example of rethinking how we do our work is problem-solving courts. We have 37 drug and DWI courts around the state and are exploring similar approaches in tackling the thorny problems that underlie much of our caseload: mental health, truancy, domestic violence, and community disputes. Problem-solving courts are a sign of our commitment to greater effectiveness, and represent a new approach to some of the traditional roles of courts. These methods help us get to the roots of the issues that bring people into our courtrooms in the first place—which in turn reduces recidivism and saves money for all of us—courts, law enforcement, prosecutors, public defense, and most importantly, the communities that we serve.
We are pioneering early case management, or ECM, in family court, with the goal of establishing programs in all ten judicial districts. The ECM process is designed to reduce time, cost and acrimony in divorce cases, particularly those involving child custody and parenting time disputes. In late 2008, we began a similar pilot project at the court of appeals and have had promising early results—settling well over half of the appellate cases mediated.
Perhaps most importantly, we continue to pursue reform through collaborative approaches that bring partners from other branches and from state agencies into the discussion. This trend started long before my tenure, with successful collaborations in the areas of child protection and drug courts. Collaboration has become a hallmark of how the Minnesota Judiciary works best, and I am proud to have continued that tradition. The courts have learned that real reform happens when we reach out and give each stakeholder a seat at the table. Tackling our challenges across disciplines—instead of within them—produces broader, smarter, and better results.
That is one of the reasons we established the Criminal Justice Forum in 2008. With representatives from ten or so key criminal justice organizations across the state—prosecutors, defenders, law enforcement, and state and local government agencies—we reviewed statutes, court rules, practices, and policies to better coordinate case processing and ultimately, improve Minnesota’s justice system.
The legislature was so impressed with this collaborative that they asked us to convene a Civil Justice Forum in 2009. This group has been very productive, and has just issued recommendations for formation of a workgroup to study differentiated case processing—the development of rules tailored to fit the variety of civil cases that come before our courts.
I also convened a third collaborative effort, the Coalition to Preserve Minnesota’s Justice System, to advocate for adequate justice system funding. Recognizing our fates were intertwined, this group conducted joint news conferences and media briefings throughout the state, explaining the potential impact of budget cuts to those local communities. Our membership included the Minnesota State Bar Association, Hennepin and Ramsey County bar associations, the Board of Public Defense, the City Attorney’s Association, AFSCME, Teamsters, the Minnesota Sheriff’s Association, Minnesota Police Chief’s Association, the Minnesota Association of Verbatim Reporters and Captioners, the Legal Services Coalition and the League of Women Voters of Minnesota.
I want to extend my deepest gratitude to all of you who helped with this effort. There are many important initiatives underway in the judiciary, but I must tell you that I have been most honored to have played a role in uniting our justice system partners. Together, we have spoken with one voice, raised the profile of the justice system, and helped fortify our position as a coequal branch of government.
Taken together, these endeavors are evidence of how hard the judiciary is working to adjust to what has been called the “new normal”—times that demand we rapidly innovate, update and collaborate. An unfortunate facet of the “new normal,” however, is dwindling resources.
In the last six years, funding for the judicial branch has fallen well short of our staffing needs. Right now, we have more than 250 staff vacancies and a shortage of 24 judges. As a result, the time it takes to get a case into court has doubled in many locations and for many case types. Statewide, one out of every four serious felonies now takes longer than a year to come to trial, leaving victims, witnesses and defendants in legal limbo. If you file a case in many of our conciliation courts, it may take six to eight months to get a hearing. We are forced to curtail services at public windows and reduce staff hours and wages in many areas of the state.
While the courts have worked hard to respond to these cuts by reengineering work processes and trimming costs wherever possible, the harsh reality is that even more dire financial challenges are on the horizon. With the state facing the largest budget shortfall in its history in the next biennium, all parts of government face cuts. There is no easy fix for this situation. I heard one legislator remark that even if lawmakers passed the largest tax increase in Minnesota history, it still wouldn’t resolve even half the deficit the state faces in 2012 and 2013.
And when you look at the demographic shifts that are taking place in this state, the picture appears even grimmer. By 2020, Minnesota will have more residents over the age of 65 than school age children for the first time in our history. According to the state’s demographer, the aging of our state will increase health care costs and decrease the tax base as the baby boomers reach retirement age.
Where does this leave the courts—and the citizens of Minnesota? In a word—compromised.
To be clear, the courts have and will continue to share in the sacrifices that the rest of state government and our citizens have been forced to make. As I have outlined today, we have made enormous efforts in this area. But I would also submit that adequate, stable funding for the courts simply has to be a top priority for all of us, inside and outside of government. The first substantive provision of our constitution states that the object of government is to provide for the “security, benefit and protection of the people.” Government achieves this directive by making laws and enforcing them through its justice system. To fulfill this basic mandate, government must have a fully functioning justice system.
Make a list of the public issues that are most important to you—perhaps the economy, education, health care? Without a vital and effective justice system, none of those things are secure. A high-functioning judicial system is important not just for the court services we provide directly to citizens, but for the stability of our social and economic structure. A vital, independent court system is the foundation for a peaceful and prosperous society. A fair and accessible judiciary is nothing less than a core American value and it must be protected first.
The good news is that while the judicial branch’s impact on our state is enormous, the courts consume only about 1 percent of Minnesota’s total state budget and less than 2 percent of the general fund. Safeguarding this vital constitutional function will not break the bank.
I have been truly impressed by how quickly the court system has adapted to the confluence of these circumstances—our new normal. I cannot take credit for that; that train had left the station years ago and I have been merely stoking the boiler. My predecessors, the Judicial Council, and Minnesota’s hardworking judges and court staff have been bracing for these impacts for years. But I feel compelled to issue a warning, even as the courts prepare to redouble their efforts in the face of future financial challenges: at some point soon, there has to be a “normal” that is free from crisis. A system under constant stress will break, and that is a consequence we cannot afford.
Preserving Our Judicial System
As I prepare to leave my role as chief justice, I would like to share a few recommendations in the interest of preserving our nation-leading court system in the face of these challenges.
I have told my colleagues and friends in the courts, you must continue to adapt as best you can. There will be pain in the near-term, but the efforts we have undertaken to innovate and redesign must be continued, even if resources have to be reallocated internally. We cannot afford to stop investing in the future because we simply cannot afford to do things the way we used to do them. The challenge is to figure out the best way to effect this change. In my mind, that means to look at change critically, but not be critical; to separate the issues addressed by the change and those caused by the change; and it means we must deliberate together regarding these issues. We have a sign posted at every meeting of the Judicial Council that says “Deliberate in many voices, govern in one.” That means no “us” vs. “them,” no blaming and no finger-pointing. The governance of the judiciary is designed to build branch-wide ownership and accountability for decision-making. It is a truly inclusive, thoughtful, accountable and deliberative process.
The challenge for the courts will be to hold the line for the next few years against encroachments on a variety of fronts. Funding is certainly one, and as a result of our financial crisis, sliding backward on performance and service is another. But perhaps an even greater threat to the judiciary in the midst of those two considerable challenges is maintaining our independence.
For years, we have been warned of the horror stories of politicized judicial elections in places like Texas and Ohio. There are some in Minnesota who think we are different; that we have such a strong tradition of nonpartisan judges and campaigning that we are largely immune from the controversies other states have experienced.
I am not in this group. The danger is no longer remote. If we look to our east, we find neighboring Wisconsin with not one, but two, highly partisan, expensive, difficult judicial election cycles, and the most recent election which featured over a million dollars in campaign fundraising for an unopposed incumbent chief justice. I favor the reform efforts advanced in the legislature this term and look forward to supporting those efforts as a practicing lawyer and MSBA member.
I want to take this opportunity to thank Sen. Rest, Rep. Simon, the Minnesota State Bar Association and its outgoing president, Leo Brisbois, and of course, Governor Quie, as well as the friends and supporters of this effort, for all of the hard work this past session in promoting the cause of preserving an impartial and fair judiciary.
My next recommendation is for our friends in the bar. Your support, particularly during the last legislative session, was nothing short of extraordinary. And as the branch faces the future challenges I have outlined today, they will need your help then more than ever.
Last session, the number of attorneys who contacted a legislator on behalf of state court funding was unprecedented. My recommendation to build the justice system coalition in the years ahead is to broadly enlist the help of your clients as well. Your clients are the ones experiencing delays, reduced services, and legal limbo due to our funding crisis. Suggest that they contact their legislators as well. A chief justice can call press conferences and meet with legislators and write op/ed pieces, but none of that has the impact that a vocal army of constituents can have. Coupled with your voices and the leadership of incoming Chief Justice Gildea, I believe the judiciary can be successful in “holding the line” on justice system funding during this financial downturn, and make a successful transition to the “new normal.”
My tenure on the bench has also given me a new appreciation for the contributions the bar makes to the justice system as a whole. As I return to your ranks in private practice, I will encourage new lawyers to take greater ownership in their profession and the broader justice system. Back when I started to practice law, there was a culture of professional activism. It was widely accepted that you became a successful lawyer by contributing to the profession and the practicing bar. Today, too many new lawyers burn the career candle at both ends, leaving little time for the service that shapes and sustains our profession. We need to advocate directly to the newcomers and encourage the support of firm partners and managers so this culture flourishes again.
Finally, to the public, if there is one message I can impart to you in this final “State of the Judiciary,” it is would be this: the justice system is yours. You have a right to expect it will be fair, independent, timely, and accessible but you also have an obligation to support it. Now more than ever, as our elected officials are making tough decisions about our state’s priorities, it is time for the public to start raising your voices at the legislature and advocating for the basic services that secure your liberties as citizens.
It is hard for the courts to garner a vocal constituency. With the exception of adoptions and marriages, we’re not exactly associated with happy events. Most people try as hard as they can to avoid setting foot in a courtroom. But the judicial branch is central to what people expect a democracy to provide—the protection of rights, the impartial resolution of conflict, and the rule of law—what has been called the “strongbox that keeps all our other values safe.” And if history teaches us anything, it is that the price of democracy is our continued vigilance.
Finally, to all of these groups—the courts, the bar, and the public—I want to thank you with all my heart for the opportunity to serve you in this incredible, once-in-a-lifetime job. I will miss it—and you—a great deal.