Oregon State Bar Bulletin — NOVEMBER 2003

A Case of Déjà vu?
Tax measure’s uncertain future leaves court funding in limbo
By Cliff Collins

Hurricane Isabel was raging on the East Coast when Chief Justice Wallace P. Carson Jr. described to the state bar convention the current court funding picture. So he borrowed some meteorological metaphors.

"The hurricane has passed us," he recalls telling the September meeting. "We’re now eyeing some peace and quiet. We’re satisfied with the budget passed. But we have reason to believe another storm is coming."

That coming storm is what Salem lawyer Mark B. Comstock calls "the other shoe" about to drop. "I’m kind of waiting for this referendum thing to work out," says Comstock, a member of the Oregon State Bar Board of Governors. "That is the other shoe, really. If it’s successful even partially, it is going to be another hit to the courts."

The 2003 legislature ended the longest session in state history by passing House Bill 2152, which raises almost $800 million for the 2003-05 budget, and includes a three-year income-tax surcharge, among other tax provisions. Those challenging the tax increase have until Nov. 25 to turn in enough signatures to qualify for a Feb. 3 special election that would overturn nearly all of HB 2152.

The Oregon Judicial Department estimated in October that if the entire bill is repealed, the department’s operating budget would be reduced by $19 million. If only the income tax surcharge were repealed, the predicted drop in the department’s budget would be $13 million. Legislators, anticipating that their efforts might be overturned by voters, included "disappropriations" in their omnibus budget bill, outlining automatic cuts that would take effect if the referendum passed.

"If we didn’t have those in place, we would be substantially out of balance," says Rep. Lane Shetterly, R-Dallas, chairman of the House Revenue Committee and one of the GOP moderates who helped forge the tax bill. "If the tax piece goes down, it at least assured we would remain in balance, at a substantially reduced level. It helps identify to voters where cuts are going to occur if it goes through." Education, health services and public safety, including the courts, comprise 90 percent of the state general fund, he says. "We can’t balance the budget on that remaining 10 percent."

However, Shetterly was upbeat about the session’s work. "As we speak today, things are much better for the courts," he says. Courts are open five days a week after being closed on Fridays from March through June, and funding, although "still lean," provides enough to operate with all court services, including prosecuting all criminal cases, he says.

Shetterly is one of a handful of OSB members who were important movers behind creating and passing the tax bill. Others included Sen. Kate Brown, D-Portland; Rep. Max Williams, R-Tigard; and Rep. Rob Patridge, R-Medford.

Comstock agrees that we are probably better off now. "At least we have five-day courts. But there is still the potential to slash down the road ... maybe the not knowing is (what makes this) a different time right now."

Patridge, who chaired the House Public Safety Subcommittee, was a main force in writing and passing another piece of legislation, House Bill 2759, which adds dedicated money to both the Oregon Judicial Department and for legal aid, none of which is subject to the referendum. "Max Williams and I helped craft that with members of the business community, and built a coalition I haven’t seen in some time," says Patridge.

HB 2759, which took effect Sept. 1, creates a temporary, 30 percent surcharge in filing fees for the circuit and appellate courts for this biennium only. It also establishes and increases various court fees and increases maximum fines. These changes will bring an estimated $6.6 million to the judicial department for this biennium, but none for 2005-07, according to Robin LaMonte, principal legislative aide. On July 1, 2005, the surcharge is repealed, and filing fees increase by 10 percent, to accrue to the General Fund.

In addition, the bill increases filing fees to support legal aid in the next three years. The judicial department estimates that this would add an additional $1.3 million for 2003-05, and $2.5 million for 2005-07.

Despite this increased revenue, trepidation remains over the potential loss of the major funding restored by HB 2152. Susan Klosterman, the Oregon Judicial Department’s deputy state court administrator for business operations, says the potential February election "looks to be déjà vu all over again. ... It’s an uncertain time. The news said the schools are uncertain if they have a budget, and I think any of us in state government feel that way. It’s clear everyone has an increased awareness of how we spend our money. We haven’t eliminated travel and what might be called discretionary spending, but we may."

At the end of the biennium June 30, the courts were running about 30 percent lower in staff numbers. Now "we have (funding for) our positions back," she says, "but what we’re trying to decide is how to proceed." Klosterman says the department’s budget is primarily for personnel, and "we don’t want to lay off people after we train them" if the budget gets cut again in the February election. In addition, the department might not get "the best applicant pool" if the prospects for a quick layoff were imminent, she adds.

"Considering some of the doomsday budgets we had been looking at, we’ve ended up with all of our positions restored," says Klosterman. "In terms of a dollar reduction to our general operations, overall there is less than 5 percent reductions in those areas." She says it would "take a couple of months to fill the positions, but having said that, we are looking at the February potential election."

Carson, who convened his Budget Reduction Advisory Committee September 25, said two schools of thought existed prior to that meeting: move forward under the appropriated budget and "try to recapture the court system we had," or "stay emaciated," starting the cuts right away. "There are differing views," he says. "Some think restoring is better, (and others think we should) plan as if it’s already gone. Neither is a good choice, in my view."

The committee recommended "we are going to continue to spend in accordance with the budget the legislature gave us," Carson says. "The legislature had the expectation we would try to get healthy again." With that aim, the goal is to get back to an 8 a.m. to 5 p.m., five-days-a-week court, refill vacancies and maintain the case priorities adopted in March.

The chief justice adds that a Feb. 3 election gives the courts longer to prepare than they had after the most recent rounds of cuts following the last special session. At that time, the department had to cut $6.4 million and had four months to do it. This time, if voters reject the legislature’s actions, cuts would begin implementation May 1, and would take place over the 14 remaining months in the biennium, Carson says. (See sidebar for the department’s prioritized list of services.)

The department’s current operating budget is approximately $276 million. He points out that the indigent defense budget, as of July 1, was taken out of the justice department’s budget and moved over to public services, so "our budget is smaller, first, simply because of that." The indigent defense budget would be reduced by an estimated $14.4 million if the legislature’s tax bill is repealed in its entirety.

Carson says what the legislature passed with the tax bill amounted to a reduction for the department, but "we thought we could get through the biennium without any heartbeat skips." Now the department is looking at losing an additional $19 million if the bill is repealed, he says.

The OSB feels impelled to apprise the public of the stakes involved and the potential impact on the justice system, says bar president-elect William G. Carter of Medford. The bar is prohibited by election law from engaging in political activities in the initiative and election process, he says, and instead its role is "to disseminate as much objective information as possible," he says. "It’s our position that when it affects the judicial system, it is our duty to inform the public."

Carter adds that Gov. Ted Kulongoski, speaking at the bar convention, called for lawyers as individuals "to participate in support of the judicial budget as is," as Carter paraphrases the governor’s address. "He stressed how damaging it would be if we had (to do) last year again."

The current referendum petitioners are circulating does not repeal all of HB 2152. However, it would eliminate about $780 million of the $792 million in new general fund revenue for 2003-05, according to Susan Grabe, OSB director of public affairs. The draft ballot title petitioners are using reads: "Enacts Temporary Personal Income Tax Surcharge, Certain Other Tax Increases, Changes; Avoids Scheduled Budget Cuts".

If the tax measure is repealed — a "yes" vote in this case means you want the revenue increases — it will trigger $544 million in automatic budget reductions. This is the second "disappropriations" section of House Bill 5077 (Section 89), including $13 million to the judicial department and $9.9 million to indigent defense. The automatic budget reductions are less than the total revenue reduction. This will create a budget shortfall, which the legislature will have to deal with, probably by making more reductions during a special session, says Grabe. Thus, the cuts to the court system will probably be higher, but we won’t have any numbers on that until at least spring, she says.

The budget for the Oregon Judicial Department also contained a number of "budget notes." These are instructions from the legislature to a state agency. One of the budget notes says that the department is supposed to develop and report on performance standards for trial courts and central administration, an effort by the legislature to ensure that courts are working at their highest efficiency levels.

Says Patridge: "As the ax swings over the courts’ head as well as everyone else’s, it’s a very difficult situation."

Two Reports from the field

Harney County (Burns)

Tammy L. Wheeler, trial court administrator

"Harney County is one of the fortunate counties that has a justice court where small claims, forcible entry and unlawful detainers and non-person misdemeanors are handled. On the flip side, the effect of the 10 percent furlough and loss of a judicial day in Harney resulted in every case type being delayed, a ‘thinning of the soup.’

"One-day jury trials took two days as no staff or administration had authority to work outside the furlough. Jury terms were lengthened to three months from two months in an effort to utilize staff resources in other areas of court operations.

"Naturally, the community response was negative as they try to reorganize their lives for a three-month jury term. Judge William D. Cramer Jr. worked on Fridays without any staff and was able to make good use of his time. He was available for local meetings and functions, settlement conferences and opinion writing. Being a one-judge district with two counties — Harney and Grant — 70 miles apart does not leave much time for meetings in the regular course of business. So I would say this was a benefit. I noted that even with Fridays off the bench, he was still writing opinions on Saturdays.

"The indigent defense budget deficit resulted in our deferring non-person class C felonies and all possession of controlled substance B felonies when a defendant requested and qualified for court-appointed counsel. B felonies piled up in the form of drug-related filings and drug-related probation violations. Community partners such as the probation department tried to deal with probation violations with more structured sanctions, but defendants can and did decline the structured sanction, knowing no consequences would be faced until funding for indigent defense was in place.

"On July 21, all deferred cases were set for an appearance and have been worked back into the docket. Jury terms are remaining at three months until we recruit and train the staff that was cut. We are getting one-day trials done in one day again, which often means working until 9:00 p.m.

"Staff went above and beyond to keep our local program for pro se litigants at full speed. There were times when we simply couldn’t offer the services of one-on-one facilitation assistance, but presently we are working back to that service.

"The outlook right now is to carry out the legislatively approved budget at the current funded level, knowing full well there is still a (tenuous) situation. We are working to fill the vacancies created by last biennium’s cuts because we truly need this staff to function. Recruiting and training are very time- and resource-consuming. I can only hope we are not faced with laying off again.

Umatilla and Morrow counties (Pendleton)

William C. Jones, trial court administrator

"If the funding the legislature appropriated to the Judicial Department and in turn to the Sixth Judicial District — with three courts in Pendleton, one in Hermiston and one in Heppner — holds up and is not disappropriated, we will be able to maintain our normal operations. If the voters reject the tax surcharge, I have been told to prepare a local budget reduction plan in 5 percent increments up to as high as 22 percent.

"Since my local budget is 92 percent-plus personnel costs, that will translate into less staff in some form or another. I am authorized a total of 39.85 full-time equivalent staff to operate this judicial district. This does not include the four judges. If I have to reduce staff by 22 percent, that translates into an 8.75 FTE staff reduction. That would severely hamper our court operations, and it would in essence put us back to where we were after the five special sessions of the last biennium.

"I presently have eight vacant positions. The Office of the State Court Administrator is suggesting that I fill all these positions or risk losing them if they remain vacant too long. I am very reluctant to fill all these positions, because I don’t believe it is fair to prospective employees to hire them in October and then possibly lay them off next March, in order to meet a budget reduction target. That is, however, what is currently being recommended by the chief justice’s Budget Reduction Advisory Committee. Also, I don’t think I will attract much of an applicant pool if I tell them that this is a very possible future scenario.

"After all the special sessions of the last biennium, I elected to reduce staff working hours and compensation 10 percent across the board rather than lay people off. We worked four nine-hour days, and were closed on Fridays to meet our mandated budget reductions. We operated in this manner for the last 14 months of the last biennium. The entire Judicial Department operated in this manner for the last four months of the last biennium.

"I believed then and I still believe that holding open vacancies and reducing staff hours and compensation is preferable to laying off trained staff that will probably never come back to work for the department. When staff were laid off in the last biennium, many of those positions were eliminated by the legislature to meet budget reduction targets. Whether positions are eliminated because they are vacant or less as a result of layoffs, the net effect is the same — less staff — but losing a vacant position does not cost me a trained employee or (cost) that employee their job.

"Community reaction to the four-day work week and employee furlough was just about what I expected. There was some concern about reduced access to the judicial system. Some businesses suffered when small claims were put on hold, and public safety was compromised with regard to non-person misdemeanors. But members of the public who discussed the situations with me or any of the staff were pretty understanding that our budget had been severely cut, and that my only options to address those cuts were to hold open vacancies and furlough staff or lay people off. In either case, lower priority cases suffered at the expense of those deemed to be higher priority.

"Staff reaction also was about what I expected. No one liked taking a 10 percent reduction in compensation, but everyone liked having a three-day weekend, and no one saw their friend and co-worker lose their job. Also, with Fridays off, the staff saved the expense of commuting, child care, lunches, etc., and many (people) used Fridays as a day for medical and other types of appointments rather than use leave during working hours.

"The budget reduction approach I implemented during the last 14 months of the last biennium produced about the impact on daily operations that I expected. Work on lower priority case types either ceased or slowed considerably, and a large backlog developed in these types of cases. We have managed to reduce, but not eliminate, the backlog in most of these, but not in the prison post-conviction relief, where a large and growing backlog remains.

"At the beginning of the last biennium, we were funded for a 0.5 FTE pro tem judge and staff person dedicated almost entirely to hearing and resolving prison post-conviction relief cases. When that system was in place, we were able to somewhat reduce the backlog with these cases, but when that funding and those positions were lost due to budget cuts, the backlog with these cases grew rapidly. With two state prisons with 1,800 inmates each in this sized judicial district, this case backlog will continue to grow unless a solution is found.

"I am currently working with the Office of the State Court Administrator to implement a plan to have these prison cases heard by Plan B judges utilizing video conferencing. These are our lowest priority cases, and if a solution is not devised to get them resolved, the backlog will continue to grow indefinitely.

"If I have to make the level of budget cuts this biennium that I did in the last one, I prefer to approach it like I did the last time around. But the Budget Reduction Advisory Committee recommendation at present would not give me that option."

Case Type Priorities for Reduced Court Operating Environments

1. Person-to-person felonies (adult & juvenile cases)

2. Juvenile permanency matters (termination of parental rights; dependency)

3. Person-to-person misdemeanors (includes DUII) (adult & juvenile cases)

4. FAPA/EDPAPA (family abuse & elder abuse protective orders; juvenile restraining orders; stalking orders)

5. Child-connected domestic relations and adoptions

6. Civil commitment

7. Non-person felonies (adult & juvenile cases)

8. FEDs (landlord/tenant cases)

9. Guardianships/Conservatorships

10. Non-person misdemeanors (adult & juvenile cases)

11. Violations (both traffic and non-traffic)

12. Civil (all levels)

13. Probate (contested cases are priority within this class)

14. Property-only domestic relations

15. Small Claims

16. Post conviction relief

Habeas Corpus/Mandamus actions (Constitutionally required writs – Consequently unranked and separate from public safety/child safety priorities above).

Source: Oregon Judicial Department

Cliff Collins is a Portland-area freelance writer and a frequent contributor to the Bulletin.

© 2003 Cliff Collins

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