a name='top'> Oregon State Bar Bulletin — JANUARY 2003
At the Crossroads
Are we prepared to dismantle Oregon’s 143-year-old court system?
A Dialogue with Wallace P. Carson Jr.

Oregon’s fiscal crisis has hit the Oregon Judicial Department hard with a reduction of $50.5 million, or 12.1 percent of its original $416.6 million budget for the 2001-03 biennium. The courts have been reeling from the crisis since the first two special sessions, and have been implementing layoffs and holding positions open for most of 2002. But the impact will escalate this Spring when, barring an influx of new revenue, Chief Justice Wallace P. Carson, Jr. expects to implement a plan to deal with the 5th special session reduction of $13.6 million. Hitting an already depleted system, this final cut left the judicial department with little choice but to look at cutting into vital court services, and changing the way Oregon’s court system serves the public.

Following are some of the questions Justice Carson has encountered from Oregon citizens, journalists and bar members as he’s traveled the state informing the public about the pending changes.

What are the basic elements of the plan for dealing with these cuts for the remainder of this biennium?
The short term (January through June 2003 budget reduction plan) relies on three basic elements: staff reduction by furlough and layoffs; one-day court closures and deferred processing of certain cases. By not filling vacancies, every court in the state has been reducing staff over the last year by a combination of layoffs or attrition or both. That trend of holding positions open will continue. Then on March 1, unless we realize some significant new revenue, we will cut further into our staff with more layoffs in some settings and a furlough program that reduces staff hours and pay, by 10 percent at all courts. We will close all circuit and appellate courts on Fridays. In terms of where we started the biennium, we will be down by more than one-third of our staff in many courts. As such, we simply cannot do as much, and some work will have to be deferred. We have created a case-type priority list to help us make those choices (see list on page 19). Our highest priorities are public safety and child welfare. We are committed to timely processing of cases like violent felonies and child abuse and neglect. At this point, we know that small claims and non-person misdemeanors will not be processed from March 1-June 30 in all courts. But each judicial district has unique challenges, and we expect most case types to be affected by delays. We are essentially dismantling Oregon’s 143-year-old court system. It’s been a difficult process and the impact will be felt for a long time.

The OJD based many decisions on a list of priority case types. What is the genesis of this list?
The list was originally created over a decade ago by a workgroup under then Chief Justice Edwin Peterson. The list was to assist with reductions that were anticipated in the early 1990s, but which were ultimately avoided. Last December, we revisited the guidelines to update and affirm them for any upcoming budget reductions. Even last year, we never envisioned a crisis so bad that we would actually stop doing certain things, but rather that the list would be a tool to help administrators prioritize workloads. To have to use it to actually cut services for a period of time demonstrates how deep the level of cutting has gone into our core structure. What makes this process so painful is that nothing on that list is even remotely expendable. Small claims represent the highest number of filings in our courts and are of vital interest to individuals and businesses. The timely prosecution of non-person misdemeanors — i.e., theft, prostitution, shoplifting, vandalism — are quality of life issues for our communities. It is extraordinarily difficult for a court system to close the doors on these issues. But when faced with our obligation in the areas of violent crime and child and family abuse, we have little choice as we try to limp along to the end of this biennium.

In terms of small claims and non-person misdemeanors, what does it mean to 'stop processing' or defer those cases? Will citizens be able to file a small claim? Will D.A.s be able to file a misdemeanor charge?
Yes. We will continue to take the filings. The question of where we go from there is complex. The simplified answer is that small claims will be filed, entered into the computer system and then deferred for action after July 1 with only a few exceptions. For example, challenges to garnishments will be heard and renewal of judgments will be allowed, because of the statutory timeline on their viability. In addition, non-person misdemeanors will still be filed, but deferred for further action after the first appearance, until after July 1. As a consequence, the D.A. may decide to delay filing of some of these cases, or perhaps to reduce some to a non-criminal violation where only lesser sanctions, and no jail time, are available.

What about the use of justice or municipal courts?
Some judicial districts have these courts, and some don’t. There is an unfortunate fairness factor here, in that some citizens will have another venue to seek redress during the four-month period, while others won’t, except to file as a regular civil case in circuit court which may be more costly to them. Our largest judicial district, Multnomah County, which had nearly 15,000 small claims filed in 2001, has no venue for these issues other than the circuit court. Statewide, there were more than 66,000 small claim filings in 2001 in circuit courts. A large number of businesses and individuals will have limited options for settling their disputes.

Because judges will be working on Fridays, will bar members have some access to them for things like settlement conferences?
Perhaps. While trials will not take place, case settlement meetings may be set for Fridays, as long as they will not require a formal record, which requires staff. Some courts, however, may have to set them for locations other than the courthouse. Also, most judge meetings and committee work may move to Fridays. Judges who have pending matters under advisement will focus on those on Fridays, and on writing opinions. Law enforcement requests for search warrants, review of probable cause status, and other actions that are available currently outside of court public hours on weekends and holidays, and can be handled by judges alone, may also continue to be acted upon on Fridays. But there will be no public access to our court services, because there won’t be any staff available.

We’ve heard that in many counties, the cuts will go beyond small claims and misdemeanors. How will other cases be affected, and is there a chance that civil cases will stop being heard in some counties?
It is likely that many counties will indeed be forced to move further up the Priority List and defer certain processing functions in other case types until after this biennium. Further, it is probable that virtually every case type will be affected by delay following staff reductions and court closures. As for the civil docket, it is vulnerable. Constitutionally, we must give criminal cases priority. With a significant percent of their staff gone, some courts will be hard-pressed to schedule civil cases. However, there are other forces at work here, too. If district attorney and police budgets continue to be battered, there may be fewer criminal cases coming in. And if our indigent defense budget is not restored, that also will impact the number of criminal cases. On the other hand, many small claims may be filed as civil actions in circuit court, increasing that caseload. All these factors play into how each docket will be affected.

Indigent defense is also part of the Oregon Judicial Department budget. The rumor is that it may literally run dry. How badly has it been cut, and what may be the outcome?
This budget is perennially challenged and that was evident in the cuts. While the overall OJD budget was cut 12.1 percent, the indigent defense budget was cut nearly 16.8 percent. At current levels, it has been projected to run out by April. To counter this, we will initiate a three-phase timing plan to begin deferring appointment of state paid counsel based on a priority ranking of case types. Once again, our top priorities will be public safety and child welfare. We hope to continue appointing counsel to cases involving person felonies, termination of parental rights, dependency and review hearings and FAPA contempts, among others. Not appointing counsel immediately in many other case types will likely give rise to statutory and constitutional questions and legal challenges, but with no funds we will have no other options. We have a request in for the January 2003 Emergency Board for additional funding, and we will be working with the new legislature to avert a disaster with our criminal justice system. Phase I of the plan will begin to be implemented by mid-January. Details on the three-phase plan will be posted on our website as we finalize them.

Oregon courts have implemented some innovative programs in the past 10 years. How vulnerable are programs like the pro se facilitator, family courts, drug courts and community courts?
This could ultimately be one of the saddest aspects of this crisis. Oregon has made remarkable strides in some innovative programs in the past decade. Our specialized dockets for courts - i.e., family and drug courts - have been lauded by participants, communities, media and national commentators. The pro se family law facilitators have been called among our most successful programs ever, offering thousands of citizens who can’t afford a lawyer helpful guidance traversing a complex arena. There is an understanding that if these programs are dismantled, they will be difficult and expensive to recreate. We are committed to saving them if at all possible, but we won’t know until this crisis plays out through the Spring.

This plan covers March-June. What happens July 1, assuming the budget for 2003-05 mirrors current funding?
Well, we of course hope that the budget will be at least somewhat stronger for ‘03-’05. Many legislators recognize the level of destruction facing our justice system. That said, they are faced with a daunting deficit in funding all public safety, human services and education. We would like to think, however, that the legislature would seek to maintain the judiciary as the co-equal branch of government that it is constitutionally established to be when considering cuts and funding levels. For this biennium, we were cut 12 percent whereas most general-funded state agencies averaged about nine percent. All that said, we hope that this plan of staff furloughs and Friday closures is only a short-term fix to get us through June. We hope that on July 1, we will open courts on Fridays in most districts, and return to serving the public five days per week. If our budget is still uncertain, it is conceivable that the closure order would need to be extended until we have some solid answers about the long-term picture. Clearly, if the budget mirrors the current one, we will face the larger layoffs that our short-term plan helped us avoid. What work we can accomplish will be based on the resources available. If there are reduced staff resources, we will be looking again at what work we can eliminate. We may have to ask the legislature to release us from some statutory requirements. And we may rely on the priority list to help us determine whether we simply stop doing some things altogether, or try to do everything but significantly less efficiently, effectively and timely.

Even if, best case scenario, you can restore a more adequate level of service in July, what about the backlog?

First, we’re unlikely to return to a fully-funded justice system, at least for this coming biennium. Oregon’s justice system is looking at a multi-year crisis of funding. And yes, the backlog will be critical. I’ve heard Judge Paul Lipscomb of Marion County talk about joining that court in 1986 and finding that they were still working through the backlog of cases from a 1981 budget crisis. Oregon will be digging out from this one for a long time. That translates into citizens seeing unprecedented delays in getting cases heard. The number of backlogged cases is likely to be mind-boggling. And, as most businesses can attest, a layoff of this magnitude means you lose many of the highly trained professionals that you’ve invested years in developing. That kind of loss can’t be easily quantified, but we know it will be a long time before we restore the kind of talent and efficiencies we’ve created over the years.

What remedies are available to the state?

Only redirecting existing revenues or creating new sources, in addition to prioritizing what state government should and will pay for.

Are there actions that bar members, or other concerned citizens, could be taking to minimize the crisis?

Bar members understand better than many citizens the vital role the courts play in our society. I hope that they will be out in their communities talking to their friends, clients and legislators about what is about to befall their state courts. At a minimum, I hope no citizen is taken by surprise when his or her access to the court is curtailed, because we have an obligation to ensure that the public is fully aware of what will happen. As lawyers, and officers of the court, I hope bar members make personal contact with legislators and other community leaders about the importance of supporting an adequately funded court system.

What has the public reaction been thus far?

The presiding judges, the trial court administrators and others have been working hard at telling the public what’s coming. The response from media has been very encouraging. Without exception, when asked, newspaper editors and reporters across the state have opened their doors and listened to our story. They’ve asked tough questions, as is their job, but I believe that they’ve invariably come away with a sense that this is a train wreck from which Oregon’s justice system will have a tough time recovering. We’ve received unprecedented editorial support, including from the state’s largest paper, the Oregonian, and from papers around the state. Radio and TV have taken the story to the airwaves also.

On a brighter note, perhaps this budget crisis has presented an opportunity to help the public understand what it is that courts do. The public sees high-profile crimes on a daily basis, but they rarely see pictures of: merchants who seek relief from shoplifters; elderly victims of estate fraud who need the court to step in; landlords who need help evicting destructive tenants; abuse victims seeking protection from a violent spouse or neighbors who need help settling a dispute over a small claim. This is the daily work of Oregon courts. It is vital. Painful as this crisis has been, perhaps it gives the public a better view of what a court system is — and its central place in any successful democracy.

Wallace P. Carson Jr. is the chief justice of the Oregon Supreme Court.
He has served on the court since 1982.

© 2003 Wallace P. Carson Jr.

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Courthouse Snapshots

Harney County

Original court operations budget (2001-03): $463,451.

Budget cuts (2001-03) to date: $12,887 (including .34 FTE, about 12.6 percent of staff, and $3,000 in supplies, 16 percent of supply budget).

Original 2001-03 staffing level: 2.7 FTE positions, 1.0 FTE court administrator, .45 FTE judge.

Anticipated staffing cuts (March 1-June 30, 2003): 10 FTE percent by furlough, totaling $4,682, plus approximately $13,000 given to the 'common good,' which would have been used to replace seven- to 10-year-old courtroom recording equipment and to install an amplification system in the courtroom.

Description of the court and the budget reduction impact: The circuit court does not handle small claims and non-person misdemeanors; the local justice court does. The effect of the 10 percent furlough and loss of a judicial day therefore will mean reductions in other case types. For example, the domestic relations pro se assistance program will be limited to an information sheet that includes websites addresses where forms and information can be obtained. Facilitators will no longer meet with pro se litigants, nor will forms be available for free. In addition, jury terms will be longer (currently a term is two months; it will now be three months.) Also, indigent defense payment processing will be every 30 to 40 days instead of bimonthly. Other effects include: loss of FSLA-exempt status for the court administrator means the administrator will not be allowed to work outside the 40-hour work week, thereby reducing case processing and staffing of after-hours trials. Thus, one-day jury trials might become a two-day trials, a result further complicated by the fact that there is just one judge who sits in both Grant and Harney County.

Source: Tammy Wheeler, Harney County trial court administrator

Multnomah County

Original court operations budget (2001-03): $37,601,092.

Budget cuts (2001-03) to date: $2,800,438, or 7.45 percent.

Original 2001-03 staffing level: 301 FTE staff and 37 judges.

Anticipated staffing cuts (March 1-June 30, 2003): 88 FTE staff positions, or 29.4 percent

Description of the court and the budget reduction impact: The circuit court serves a population of 666,350 (19 percent of the state’s population), in seven locations. Multnomah County courts have a complex civil caseload that accounts for 48 percent of the personal injury and medical malpractice cases filed in all of the state’s circuit courts in 2001, 46 percent of the wrongful death actions, and 37 percent of the contract actions. Forty-seven percent of the active members of the Oregon State Bar have their principal office in this judicial district. The circuit court operates an extensive array of programs (including an intensive DUII program for repeat offenders, a family law self-help center, management of criminal actions, 'one family-one judge' family court, participation with community partners and a program for the early disposition of criminal cases). Multnomah County has gained national attention for these programs and is committed to their continuation. However, administration of the programs will be 'significantly curtailed' due to the loss of so many staff position from the clerk’s office.

Also, due to reductions in the indigent defense appropriation, criminal prosecutions and juvenile delinquency proceedings for certain types of offenses cannot go forward. Inside the courthouses, things will slow down tremendously and queues will grow for access to clerical staff and for access to court records. Phone access may not be available in any reasonable time frame, and it could take weeks for documents to proceed from filing to entry and then into the case file. Long lines at the file room should also be expected.

Quote: 'Chief Justice Carson has said, ‘Strong courts build strong communities.’ It frames now what we risk as we reduce the capacity of the Oregon Judicial Department and the circuit courts to meet expectations our communities have grown to expect from a first rate, modern and efficient court system. As we weaken our courts, we weaken our communities.'

Source: Doug Bray, Multnomah County trial court administrator

Umatilla/Morrow counties

Original court operations budget: $2,561,916.

Budget cuts to date: $284,935, about 11 percent.

Original 2001-03 staffing level: 25 FTE, including the trial court administrator, and four judges.

Anticipated staffing cuts (March 1-June 30, 2003): 6.0 FTE, 24% percent of present FTE (three unfilled vacancies, one retirement and two last-hired staff, fearing a layoff, left for other jobs), plus a cut in hours from 40 hours per week to 36 (includes exempt staff).

Description of the court and the budget reduction impact: Umatilla and Morrow counties operate five circuit courts in three locations. There are two state prisons in Umatilla County. At any given time there are about 220 post-conviction relief and habeas corpus cases generated by the two prisons. At the start of 2001-03, a half-time pro tem judge and a half-time staff person worked on these prison cases; because of budget cuts, funding for these positions will be exhausted before the end of the biennium. When that happens, we will fall further and further behind on the prison cases. Other impacts: Since funding for drug and alcohol treatment has been cut from the Oregon Health Plan, the court will not apply for a drug court implementation grant. Reduced case types may well goes as high as No. 14 (see list on page 19), thus deferring the processing of violations, probate and FEDs, in addition to small claims and non-person misdemeanors. Post-conviction relief cases from the state prisons may also be deferred.

Quote: 'The infrastructure of this Judicial District is being eviscerated. Public safety and access to justice are being severely compromised. These needs are not going to be met in this budget environment. There is a huge methamphetamine problem. This public safety need is also not going to met and this insidious drug will increasingly destroy lives, families, children and our quality of life.'

Source: Bill Jones, Umatilla County trial court administrator