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Court Funding Committee

Report of the District of Columbia Bar Court Funding Committee: Introduction

  1. Introduction
    1. Court Funding Committee: Formation and Charge
      In her keynote address at the 2000 District of Columbia Judicial Conference, Chief Judge Annice Wagner underscored the significant challenges facing the District of Columbia Courts due to inadequate funding of the Courts' budget over the past several years. She described how these funding shortfalls were jeopardizing court employee morale, indigent defense, and the overall administration of justice in the District of Columbia.
           Believing that the D.C. Bar has an interest in the legal system in the District of Columbia, and recognizing that the funding crisis posed a threat to that system, D.C. Bar President, John Nields, proposed that the Board of Governors appoint a committee to study the court funding crisis.
           In September 2000, the D.C. Bar Board of Governors approved the formation of the Court Funding Committee. The Board charged the Committee with conducting an in-depth review of funding issues now facing the District of Columbia Courts. It asked the Committee to issue a report which would contain its findings and recommendations. And it specifically asked the Committee to make a recommendation whether the Board should seek membership permission to speak on legislation before Congress regarding court funding issues2. With the approval of the Board, the President appointed a committee representing a wide spectrum of highly esteemed and prominent members of the D.C. Bar.
           Former Bar President, Carolyn B. Lamm, agreed to chair the committee. In alphabetical order, the committee is comprised of the following individuals: Donald B. Ayer, Margaret M. Barry, Francis D. Carter, Fred F. Fielding, Douglas N. Letter, Michael J. Madigan, Charles F.C. Ruff3, Pauline A. Schneider, Kenneth W. Starr, Marna S. Tucker, and Charles R. Work. John W. Nields, Jr., and John A. Payton are ex-officio members of the committee. Katherine A. Mazzaferri and Hope C. Todd serve as staff liaisons to the committee.

    2. History of the D.C. Courts and Court Funding Pre and Post National Capital Revitalization and Self-Government Improvement Act of 1997
      In order to understand the context of the serious funding issues requiring prompt resolution, it is important to understand the history of the D.C. Courts and how they have been funded during the past 30 years. In 1970, Congress reorganized the Courts of the District of Columbia pursuant to a detailed, comprehensive scheme creating a unified modern court system that included the Superior Court and the Court of Appeals of the District of Columbia ("the Courts"). Upon court reorganization, Congress delineated the functions between the United States District Court and the District of Columbia Courts, transferring local responsibilities previously handled in the U.S. District Court to the District of Columbia Courts4.
           As described below, the District of Columbia Courts have achieved great efficiency and, on numerous occasions, have been recognized for their organizational and managerial proficiency that has resulted in the effective administration of justice within the District of Columbia.
           In 1982, the D.C. Bar issued a voluminous study of the progress that had been achieved in the administration of justice in the District by the unified Court System since 1970. In his forward to the study, the late, highly respected leader of the Bar, Charles A. Horsky, noted that important positive reforms had resulted from the reorganization of the Courts.
      These comparative examinations reveal important positive reforms in many areas as a result of the 1970 reorganization. Significant improvement in the timeliness of processing of juvenile delinquency and family cases, civil jury trial cases, probate matters, and several others are noted in the reports. Another important improvement noted by the Committee concerns the judicial and non-judicial management of the District of Columbia courts. In many areas the administrative processes of the courts have been facilitated through greater use of court managers within and outside the judiciary. The reports take specific note of the improved citizen access to the courts as a result of the 1970 unification. Finally, the Committee observed a consistent viewpoint, expressed in most interviews held over the life of the study, with regard to the improved image of the District of Columbia courts since court reorganization. The level of respect and confidence in the courts has improved substantially in the ten years since court reorganization began in 1971.
      In January 1996, in the conference report accompanying H.R. 2546, the conferees had this to say about the administration of the D.C. Courts,
      The District's judicial branch of government is one of the better managed entities in the District government. All personnel, including those in supervisory roles, appear to be well trained and dedicated to excellence.Requests for financial information such as obligations incurred, accounts receivable and payable, and balances are readily available.The conferees believe the high quality and caliber of all court personnel, including management staff provide the Courts with this capability to meet the challenges posed by the current financial crisis without sacrificing standards and public service.
      Despite the strength of the District of Columbia Courts, from time to time funding problems have presented challenges to their efficient functioning. For example, in the early 1990s the Government of the District of Columbia experienced a financial crisis. At the request of the District of Columbia Courts, the Board of Governors of the Bar established a Task Force on Court Funding to study the effect of decreased and inadequate funding on the District of Columbia's Courts. The findings of the Task Force and the history of the special membership meetings held during this time regarding the Bar's ability to speak publicly on court funding issues are described more fully in Part V.
           For the past several years, the District of Columbia Courts have again been dealing with challenges arising from the lack of, or inadequate funding for, many of their core functions. Current financial difficulties stem in part from unintended consequences resulting from the enactment of the National Capital Revitalization and Self-Government Improvement Act of 1997 (hereinafter, the Revitalization Act) that was introduced by President Clinton in January 19975. In introducing the bill, the President noted of the District of Columbia Courts,
      .the court system works well, and the courts would continue to be self-managed…there are no conditions for implementation because the District court system is deemed to work well.6
           The Revitalization Act addressed several agencies and functions within the District of Columbia and it impacted the District of Columbia Courts in three primary ways. First, pursuant to the Revitalization Act, the federal government assumed direct responsibility for financing the District of Columbia Courts. Second, certain functions within the Courts were transferred to other authorities, along with significant funds that were previously part of the Court's budget base. Third, the Courts assumed an unfunded liability of several million dollars for court appointed attorneys.
      1. Financing of the Courts
        Prior to enactment of the Revitalization Act, the Courts developed an annual budget that was submitted to the Mayor. Once adopted by the Council, it was included in the comprehensive District of Columbia's budget submitted by the Mayor to the President for transmittal to Congress, with the District's recommendation, but without revision. The chief judges of the Court of Appeals and the Superior Court and the executive officer of the Courts often appeared before Congress to testify in support of their budget. Staff from the District of Columbia's Office of Intergovernmental Relations and the District of Columbia's Budget Office lobbied staff and members of Congress for approval of the District of Columbia's budget, which included the Courts, and responded to congressional inquires.
             This changed upon passage of the Revitalization Act. Under that Act, the Courts' budget is decoupled from the rest of the District of Columbia's government budget. The Courts submit budget estimates directly to Congress and the Office of Management and Budget (OMB) with copies to the Mayor and the Council. The Courts' estimates are to be included in the budget without revision by the President, but subject to the President's recommendations7. However, in reality, it is rare for the Congress to appropriate more than OMB recommends on behalf of the President. The President submits the Courts' budget, along with that of other federal agencies, to Congress in February.
             Congressional hearings on federal agency budgets occur during a several month process beginning in the spring. The Courts are sometimes invited to testify before the relevant appropriations or authorizing committees, but this is not always the case. Sometimes the Courts are simply asked to respond to questions posed by committee members and staff.
             Congress is expected to act on the budget of the Courts, as well as other federal agencies, in time for the start of the new fiscal year on October 1. However, if no budget has been adopted by October 1, Congress typically passes a continuing resolution allowing agencies to spend generally at the level of the prior year's appropriation.
             The Courts currently get no appropriated funds from the District of Columbia. They also get no support from the District of Columbia staff to help articulate their budget priorities to members of Congress and committee staff or to assist them in ensuring passage of their budget. The lack of legislative staff, skilled in the ways of Congress, who have regular interaction with members of Congress and their staff, is a distinct disadvantage for the Courts.

      1. Transference of Court Functions, and Funds, to Other Authorities
        The second primary impact of the Revitalization Act on the Courts is that certain functions within the Courts were transferred to other authorities, along with an estimate of the dollars necessary to perform these functions. Unfortunately, in FY 1998, the first post Revitalization Act fiscal year, more money was taken out of the Courts' budget than the Courts had previously budgeted for these services. Specifically, Congress took $20 million out of the Courts' $123.5 million budget to cover the costs of the probation functions removed from the Superior Court's purview under the Revitalization Act. Previously, however, the Superior Court had spent only $12 million for these functions. The result was an immediate shortfall for the Courts of approximately $8 million. Added to this shortfall were over $3 million in unanticipated costs the Courts had to cover as a result of the transition. Of the total shortfall of $8 million for the transferred functions only $2.8 million was eventually returned to the Courts. The rest of the shortfall had to be made up by under-spending on the Courts' other functions, including a freeze on the hiring of employees and deferring payments to assigned counsel near the end of FY 1998.

      1. Unfunded Liability to Court Appointed Attorneys
        Over the last several years, the D.C. Courts have experienced increased costs for defender services. Each year claims vouchers are submitted to D.C. Courts for cases assigned in prior fiscal years. Before submission and approval, these claims constitute an unfunded liability which must be paid out of some future budget. The estimates of such claims have been described as similar to the expense and liability that insurance companies record where an event has occurred that will result in a future claims expense, but the claimant has not filed the claim. Before implementation of the Revitalization Act, an estimate of these liabilities was reported to the District of Columbia each year, (and several years ago were estimated to be as high as $13 million). Although accrued while the Courts were within the District of Columbia's budget, these liabilities have to be paid by the Courts' budget in future years. When the Revitalization Act was passed in 1997, the Courts inherited an unfunded CJA program liability of several million dollars. This was for assigned cases and/or attorney work done prior to the Revitalization Act for which no requests for payment had yet been submitted.8
  1. As the result of a referendum in 1976, the D.C. Bar may speak on proposed legislation if 1) the legislation is closely and directly related to the administration of justice and 2) it receives authority from its membership at a meeting or a referendum.
  2. Mr. Ruff was a member of this committee until his untimely death on November 19, 2000.
  3. See District of Columbia Court Reform and Criminal Procedure Act of 1970, Pub. L. No. 91-358, 84 Stat.473.
  4. Congress passed the Act in July 1997, and the President signed the Act in August 1997. It became effective October 1, 1997.
  5. From a White House Press release dated January 14, 1997 from the Office of the Press Secretary.
  6. D.C. Code §11-1743 (199 Supp.)
  7. The nature of the defender services program makes it difficult to predict accurately amounts to be paid in any fiscal period. Between 1980 and 1988, when costs for indigent defense exceeded budget estimates, the Congress provided supplemental appropriations. In more recent years, Congress has not been receptive to requests for supplementa. appropriations. Although the Courts have taken steps to better estimate and budget for these programs, claims in any given year sometimes exceed the amount budgeted and appropriated by Congress. Since 1976, the Appropriations Acts have generally provided that funds appropriated, for CJA, CCAN and Guardianship (Defender Services) are available for obligations incurred inn prior years (See e.g. D.C. Appropriations Act 1999, Public Law No. 105-277, 112 Stat. 2681-127). However, payment of costs for prior years can have serious fiscal impact on the current budgets. During fiscal year 1999, the D.C. Courts paid approximately $6.2 million of fiscal year 1998 defender services obligations from fiscal year 1999 appropriations. Obtaining support for the rising costs of indigent defense is a recurrent issue in which members of the Bar have a significant interest and which is discussed in more detail in section IV. (D) of this report.