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The Other Branch of Government

The Other Branch of Government

• By Ashe Lockhart
• April 20, 2007

>> The law is something of a mystery to most people.  In fact, it’s apparently a mystery to a good many North Carolina state lawmakers.  North Carolina’s legislative branch of government (the General Assembly), with the apparent acquiescence of the executive branch (headed by the Governor), has historically been a little tight in allocating funds to the judicial branch.  Consequently, the judicial branch is heavily burdened and lacks the resources to provide North Carolina citizens with the level of service the citizens should be able to expect.  Every time the General Assembly or the Governor grandstands on a law enforcement issue (i.e., uses public policy hot buttons to pander for your vote) and enacts a new law, the burden to enforce the new law falls not just on the police but also on the courts.  The police have a hard enough time getting the funding they need to properly enforce existing law; the courts inevitably end up with what is called an “unfunded mandate.”  But unfunded mandates are the least of the problems for the judicial branch.

N.C. Is Starving Its Courts
Inadequate funding by legislature may create a constitutional crisis
From Ashe Lockhart, a Charlotte lawyer
(published by the Charlotte Observer on November 20, 2003)

Your recent report of Chief Justice I. Beverly Lake Jr.’s address to the N.C. Citizens for Business and Industry ought to send a chill down the spine of the citizenry of North Carolina (“Chief Justice Lake campaigns for bigger state court budget, ” Oct. 31 [2003]).

He [Chief Justice Lake] said the judicial branch of government is “$2.7 million behind in bills to vendors and still has a $1.5 million unpaid telephone bill,” and is so late paying its mailbox rent that the mailbox was sealed.

Imagine, the Supreme Court of North Carolina unable to get its mail!

The court system exists to provide citizens some measure of protection from the tyranny of the majority and from the occasional poor judgment of the General Assembly. Due process of law is the citizens’ bulwark against the otherwise unchecked and potentially tyrannical police power of government. Thus, the tension between order and liberty or tyranny and anarchy is managed through the court system.

On an only slightly more mundane level, the court system exists to provide citizens with a mechanism through which they can seek redress for the wrongs they suffer from the negligence and carelessness of others. And of course the court system is an integral part of our criminal justice and law enforcement system.

The availability and quality of justice are inversely proportional to the incidence of citizens resorting to self-help remedies, which, at the extreme, take the form of vigilante justice. Citizens who have their lives and fortunes before the court system almost universally grouse about the speed with which their matters are handled and often complain about the outcome. How much of the popular discontent with the law and lawyers can be traced to the inefficiency of a grossly under-funded judicial branch of government?

While the funding crisis may not be a partisan issue, it is nevertheless a political issue. That the judicial branch of our state government is so completely subject to the political whim and caprice of the legislative budget process is tantamount to crisis even during the good times. In North Carolina today, the fulcrum on which the balance of the three branches of government teeters permits the balance to totter too far in favor of the imperial legislature.
To quote Chief Justice Lake, “as a separate and co-equal branch of government, our court system simply cannot be accountable unless we have the authority to manage our resources. Responsibility and accountability go hand in hand.”

We, and the General Assembly most of all, need to recognize and respect that the judicial branch is not a mere government department but one of three branches of government, and its ability to provide the proper balance to the process of governance is significantly diminished by the current funding debacle.

Chief Justice Lake quoted from a recent article in the N.C. State Bar Journal written by John Medlin, former chairman of Wachovia, and former Chief Justice Rhoda Billings. They wrote, “The courts have lagged spectacularly far behind most of the rest of our society in adopting technology for menial record-keeping tasks, to manage information, and to inform decision making…. The General Assembly has simply failed, virtually since the establishment of our unified statewide court system in 1970, to appropriate sufficient money to allow the courts to keep up with the increasing demands…. Increasing the total appropriations for the operation of the courts to the level required to adequately meet their needs is, indeed, a goal of constitutional magnitude.”

Can there be any question about this?

NOTE (April 20, 2007):  Shortly after the Charlotte Observer published my commentary, the Board of Directors of the Mecklenburg County Bar invited me to a board meeting to participate in their discussion of whether the Bar should take a position on the judicial branch funding issue and how the Bar might be involved.  The outcome of several meetings on the subject was adoption of a written Resolution of the Board of Directors and the appointment of two senior lawyers to advise the Bar on the publication of the resolution and on any other role the Bar should take in working with the public and North Carolina lawmakers to resolve the judicial branch’s long-standing funding problem.  To the best of my knowledge, the resolution was never officially published by the Bar, even though it had been approved by a vote of the board of directors.  (text of the resolution)

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Ashe Lockhart – Principal

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