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Chief Justice: A Scolding, And Food for Thought

“Let us be candid: innocence, though presumed by our system, is currently bad for our bottom line.” – Louisiana Supreme Court Chief Justice Bernette Johnson

It was a wonder any House members could take their seats Monday afternoon, following Louisiana Supreme Court Chief Justice Bernette Johnson’s biennial address to the joint session of the Legislature. You see, she gave them an ass-chewing.

Justice Johnson was civil in her tone and words, but there was no doubt the House had earned her disapproval, as she gave them a thorough scolding over their tight-fisted approach to budgeting in general– and the Judicial branch’s budget, in particular.

“We are cognizant of today’s budgetary challenges and competing priorities. And let me stress to you that we do not deem ourselves immune from the financial difficulties facing our state. Our budget was not created in a vacuum or without regard for the needs of other government entities,” Justice Johnson said.

“Under our tripartite constitutional system of government, you, the Legislature, are charged with funding all three co-equal branches. Adequate funding of the judicial branch of government is your legislative responsibility, and is critical to ensuring an independent Judiciary,” she continued. “It enables the state Judiciary to fulfill its constitutionally mandated duties to apply the laws you have written, and to ensure access to justice for all.”

Last Thursday, the House failed to pass the judicial budget – HB 698. The lower chamber managed to advance the unwieldy and insufficient state (executive) budget – HB 1 – to the Senate. And House members passed the legislative budget, HB 751, by a vote of 89-11.

Yet the judicial budget, originally requested for $180-million, had been cut by the House Appropriations Committee to $164-million — $7-million under the current year’s appropriation of $171-million. And last Thursday, that budget bill could not muster the 53 votes needed for passage,  so the Chief Justice let her displeasure be known.

“We asked for $180-million. It reflects years of belt-tightening, delayed filling of personnel vacancies, renegotiated contracts with vendors, restricted use of outside consultants,” Justice Johnson told the legislature. “We have been good stewards of the public fisc, effectively and efficiently operating a co-equal branch of government.”

House leadership did show they were not entirely tone-deaf to either the Chief Justice’s words or the fact that she had brought the entire complement of the state’s highest court with her. Following her address, they reconsidered the Judicial budget bill, and this time it passed, 84-1. However, no additional funding was added, leaving the state court system funded at $164-million next year.

While the lecture on legislative obligations and the rapid response to remedy the reproach was eminently satisfying, it wasn’t the sole content of the Chief Justice’s address. Earlier in the day, House Appropriations had approved the bill calling for a limited Constitutional Convention in 2020. Chief Justice Johnson suggested they might consider revamping the organization of, and funding streams for, the entire Louisiana judiciary, as well.

“Louisiana is among the minority of states in our nation with a non-unified court system. Rather than using state funds to fully fund our Judiciary, we push much of that obligation off onto local governmental entities. Those, in turn, pass much of that unfunded mandate onto civil litigants and criminal defendants in the form of court costs, fees, and fines. Funding a court system through the use of court costs paid by users of the justice systems presents many challenges that we as a state government need to confront,” Justice Johnson stated.

She went on to explain that court costs are authorized in a piecemeal fashion, requiring legislation to change them, jurisdiction by jurisdiction. There’s no uniformity to the fees or costs, and not even a complete listing of what those fees and costs are – nor any way to centrally account for how and when they’re collected.

Citing a number of federal lawsuits pending over the way the state funds its criminal justice system, Justice Johnson said, “I believe it is time for us in Louisiana to begin thinking about the toll that this type of funding mechanism takes on our justice system. Is it financially prudent and morally responsible to fund a co-equal branch of government on the backs of a few who are often the poorest and least fortunate members of our society? We simply cannot continue locking up indigents because they are too poor to pay fines for crimes often committed because of systemic poverty. Either we reform the system ourselves, or we risk having it reformed on the pain of a federal judgment or consent decree.”

Johnson said she was not immune to the irony of asking for a change to court organization and funding at the same time deep budget cuts had become necessary. But by unifying the courts into a single system, it would enable development of a fixed and predictable annual budget for the judicial branch.

It would also eliminate the perceived injustice of having a “user-pay system.”

“Some of you may think it is fair and reasonable to ask those who use our justice system to pay their share. But let us be candid: innocence, though presumed by our system, is currently bad for our bottom line,” Justice Johnson said. “Would you have faith in the system if you knew that every single actor in the criminal justice system – including the judge and your court-appointed lawyer – relied upon a steady stream of guilty pleas and verdicts to fund their offices? Would you doubt your ability to get justice?”

Senate President John Alario, in thanking the Chief Justice for her remarks, said, “You have planted a seed. It’s going to take a lot of water – and a lot of fertilizer – to nurture it until it is ready for harvest. But I believe you have given us great food for thought.”

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