Setting the Context - Page 1
Today’s Challenges in the Administration of Justice The role of the American court system, the third branch in our democratic form of government, is unique in all the world. When the founders of the United States created the Constitution and the Bill of Rights, they were conscious of three primary factors. Based on their experiences with the monarchy in Britain and their experiences with the Iroquois Confederacy in the new land, the founders created independent courts to ensure that:
These principles apply to both the criminal justice system, in which the executive branch is bound to enforce the law enacted by the Legislature, and the civil justice system, where individuals and businesses peacefully resolve their disputes over family issues, business matters, and other noncriminal activities. To fulfill its basic but critically important role, the court system must operate in ways that are very different from the processes used by other branches of government. The courts must apply the law as enacted by the Legislature, not create it. California State Court Judges, although typically appointed to office by the Governor, must run for nonpartisan election. Judges must apply the existing law to the facts of each individual case and remain unswayed by public opinion or political pressures. To assure that they maintain impartiality in their decision-making roles, judges must carefully and mindfully limit their involvement in noncourt activities. While the independence of judicial decision making must be protected to ensure the effective functioning of the judicial branch, judges can and should be directly involved in and responsible for effective administration and court management. Judicial leadership is needed to take the courts into new roles and responsibilities required by its current and ever-changing environment and will help the courts make the needed changes in the way the system treats and listens to the public it serves. Fundamental to our system of justice is the notion that our courts provide access to all for the peaceful resolution of disputes. One of the major challenges the courts face today is ensuring equal access to justice. Some of the ways in which equal access issues are manifested in the courts include: 1. Pro Per Litigants. Today more people than ever are using the court system without the services of attorneys. These people, called pro per litigants, low and middle income people, for the most part cannot afford to hire a lawyer and so are forced to handle by themselves legal issues affecting their lives and their families. Limited resources of local legal services programs prevent those programs from assisting all those who need assistance. Court staff are then put in the position of providing a greater level of service to these court users. In doing so, court staff must walk a fine line, answering questions and assisting unrepresented people in navigating "the system" without giving them legal advice on the specific issues in their case. 2. Court Interpreters. The changing demographics of our population mean that significantly larger numbers of people using the courts have no or limited fluency in English and therefore need court interpreters to ensure that they fully understand court proceedings. Currently, courts are required by law to provide court interpreter services in criminal cases, but they often find it difficult to do so because of the limited number of qualified interpreters in the many different languages now spoken in California. Court interpreters in civil cases must be provided at the expense of the litigants, so in family law and other civil proceedings where such interpreters are often not available, court users frequently experience difficulty in understanding and obtaining access to court services. Court interpreter services should be seen as a basic part of court services, not as additional services that are provided only when available. Too many people who support court operations through the payment of taxes are now left without real access to justice because of language barriers. 3. Alternative Dispute Resolution. Many efforts are under way to create options for alternative dispute resolution so that people may peacefully resolve their own disputes without resort to the courts. These efforts are to be commended and encouraged because they create a forum and a foundation for people to learn about their own responsibility for peacefully resolving disputes. However, some alternative practices have developed, not for the purpose of empowering individuals to take responsibility for their own lives and actions, but rather to compensate for the limited availability of court services. The high number of criminal cases handled by the courts has meant that civil cases often have to wait for long periods of time before receiving court attention. Yet, justice delayed is justice denied. So it is no surprise that this delay in civil litigation has caused business enterprises to look to private judging as a way to permit them to resolve their disputes in a timely way. Even though private judging meets certain business needs by providing timely services to the business world, the creation of a separate private judging system raises serious questions. Is there now a two-tier system of justice, one private for those who can afford it, and the other public and at the mercy of limited resources and abundant caseloads? Is equal access truly assured if one party can obtain quicker justice because that party can afford to pay for private dispute resolution? 4. Limitations in Court Funding. One of the most serious challenges to equal access to justice has been the historic split between counties and the state as providers of court funding. This dual responsibility for funding has resulted in a court system that has been chronically underfunded, a situation that has had serious long-term consequences. In many counties, court facilities have seriously deteriorated. In some counties, courts have been forced to close their doors except for limited hours of operation. For most, there have been insufficient numbers of judges and court staff to provide services for the ever-increasing population and growing numbers of cases being brought to the courts. Having "done without" for so long, the courts have managed to move cases through the system, but the adjustments and choices that have been made to ensure efficiency in case processing have also raised questions about whether courts are providing the quality of justice the public expects. Court resources and equal access to justice are interdependent.
Public Trust and Confidence During the last two decades, numerous surveys regarding public perception of the judicial system have been conducted by federal, state, and private agencies and institutions. These surveys sought to measure many different aspects including the following:
Two overarching conclusions can be drawn from these survey results. First, the public continues to care deeply about the quality of justice and overwhelmingly endorses the notion of a judicial branch that delivers a high quality of justice to all. Second, public expressions of dissatisfaction with the justice system (even taking into account a lack of understanding of the system) challenge the courts to effectively address perceptions of lack of fairness, access, and affordability, as well as perceptions of inefficiency and court congestion.
Freedom of the press is protected by both the U.S. and California constitutions. In part, such protections were created to ensure that government — including the judiciary — is subject to the scrutiny of the governed. Implicit in this system is a vigorous press that is legally literate and able to attend court proceedings, review court files, and report effectively on what it has learned. A key to the effective exercise of the press’s role, however, is a press that itself understands the limits as well as the powers of the judicial system, so that its reporting to the public is clear and accurate and fairly describes court actions. Too often when the courts and the press see themselves in adversarial positions, these situations can affect the quality of the information provided to the public. Judges are limited by canons of ethics as to the type and amount of information they can discuss about pending cases. Alternatively, judges are charged to ensure that individuals brought into the criminal justice system receive a fair trial. These requirements sometimes result in decisions that limit press access to the court. On the other hand, courts reach out to the press only when the courts are "in need" of something, such as support for funding. Because a strong but independent relationship has not been built between the courts and the press, tension and misunderstanding continue between these two important elements of our society. Because most of the public’s understanding of the court system is based on information provided by the television, movie and print media, it is imperative that the courts and the press develop a mutually respectful working relationship. In so doing, the courts can help educate the press about court practices and procedures, and the press can inform and educate the public about the workings of the system while ensuring that the system is fairly scrutinized.
Public opinion about the justice system is not limited to the operations of the courts. Public perceptions of lawyers reveal a growing concern about ethics in the bar: many see lawyers as too expensive, and some view lawyers as interested in themselves rather than their clients. Many also believe that lawyers treat their affluent clients better than their poor clients. To remain an effective part of the justice system, the bar must regain its past reputation for integrity, honesty, and public service. There is much that can and is being done to address these public perceptions. The State Bar of California has begun a study of the future of the legal profession. Attorneys continue to reexamine the role of lawyers in society and to consider improvements in professionalism, ethics, and public service. The Chief Justice has called on members of the bar to substantially increase their pro bono services for people who cannot afford to hire a lawyer. Much remains to be done, however. Training of lawyers, both in law schools and in continuing legal education, needs to undergo a significant change so that law-trained individuals will be well versed in alternative dispute resolution techniques as well as adversarial litigation. Lawyers must reclaim their traditional role of "counselors at law" who can advise clients on methods for achieving desired results that encourage personal responsibility and a willingness to resolve disputes through compromise and other alternative means. Reclaiming the image of lawyers as persons working with integrity is a significant endeavor. The bar must challenge its members to rise to the highest ideals of the profession while ensuring that the bar’s disciplinary systems are swift, effective, and understandable to the public. Finally, all lawyers must see that providing pro bono services to the public is a requisite of the profession, that providing free legal services to those in need is a quid pro quo for the opportunity to serve as officers of the court and as guardians of equal and accessible justice.
Members of the general public ordinarily have limited involvement with and awareness of the courts. Those individuals who do have the opportunity to be more involved with the courts as volunteers or citizen advisors, have reported that as a result of this experience, they learned much about the court system and the limitations that affect how judges decide cases. They have also reported, however, how little those inside the system recognize that they have created a system little understood by the general public and one whose language keeps the public away. To improve public awareness of and involvement with the courts, the justice system needs to address two primary issues:
|
