The presidents of the American Bar Association, The Florida Bar and The Jacksonville Bar Association met with media April 11 preceding the annual Law Day event in Jacksonville.
The theme of Law Day 2012 across the country is “No Courts, No Justice, No Freedom.”
The Daily Record interviewed American Bar Association President William Robinson III, The Florida Bar President Scott Hawkins and The JBA President Michael Freed about issues their organizations have chosen to address. Robinson was the keynote speaker at Law Day in Jacksonville.
Robinson is the member-in-charge of the Frost Brown Todd firm’s Northern Kentucky offices in Florence.
Hawkins is the vice chair and a shareholder with Jones, Foster, Johnston & Stubbs in West Palm Beach.
Freed is managing partner of Brennan, Manna & Diamond in Jacksonville.
Here are excerpts from the interview.
What’s your message for Law Week?
Robinson: Our primary message is that the courts are about the people, for the people and there to serve the people and they are the key to a representative, constitutional democracy.
Our American Constitution and our state constitution, which ispatterned after it, established the courts as one of three coequal branches of government.
The balance of powers between the three branches of government is what most historians recognize as the unique aspect of our Constitution that has basically not only established but allowed our country to prosper over 200 years with a very high level of democracy and representative government.
This system of checks and balances revolves around the courts as the linchpin of democracy, and for the courts to fill that role effectively and responsibly the courts need to be adequately funded.
When the founders of our country wrote the Constitution with the wisdom that they brought to the table, historians tell us they didn’t have enough money to pay the Revolutionary Army.
Our new government, at the beginning, didn’t have the money for roads, didn’t have the money for utilities, didn’t have the money for buildings. It had to rent storefronts to set up operations.
But from the very beginning, the courts were established as one of three coequal branches of government, and to the extent that they are underfunded, the ability of the courts to fill that role is compromised, and freedom is compromised, and the quality of democracy is compromised.
Businesses from around the world, including China, invest in this country because the law is predictable, the law is reliable, the law is basically honest throughout this country, and their money is secure here because our system of law has been secure here.
We need to adequately fund our courts. This is not a lawyer issue. This is a public issue about the quality of life in America.
Last year, 42 out of 50 states cut court funding, and that was on the heels of many cuts that had come previously. There’s not a state in this country that funds its statewide judicial system with more than 4 percent of the overall operating budget. And we’re talking about one of three coequal branches of government, and here in Florida, it’s around 0.7 percent, less than 1 percent.
It’s really unconscionable, and it probably continues to happen because civics education in this country is so lacking. Civics has not been taught for two generations.
An embarrassingly high percentage of the population can name every judge on American Idol, first and last name, but can’t name a single judge on the Supreme Court, including the chief justice.
You might try that some time at a reception or a cocktail party. You’re standing around looking for something to talk about. ‘By the way, do you have any ideas on the Supreme Court?’ I’m always surprised. Not only they don’t know, but they don’t care.
In these tough times and in these tight budget periods, everybody’s being forced to take a cut. Governors, presidents, every agency, every part of government. Why should the courts be different?
Robinson: Because the courts are a coequal branch of government. They’re not a line item in the general state budget. They’re not roads, they’re not parks, they’re not libraries, all of which are worthy objects, but if we value representative democracy, if we see our Constitution as the key to our unique place in history, the courts need to be adequately funded.
Not for the lawyers. The lawyers are well-educated. Lawyers are fine one way or another to be successful, because we have the benefit of education, discipline, including disciplined thinking.
But the public at large, whether they use the courts themselves personally at any given time, they need the courts to be there like they need emergency rooms to be there, police stations to be there, firehouses to be there.
It’s a quality-of-life issue. Those who have had the benefit of education understand that civilizations are not guaranteed to be successful forever. Countries come and go; civilizations come and go; the Roman Empire came and went. There’s no guarantee that our country, in this complex world in which we live, is assured of a future.
But most of us see our Constitution, and our constitutional form of government, as the key to our future. If we agree, and I haven’t heard anyone disagree, that our courts are the key to the balance of powers between our branches of government, which is the key to our unique representative democracy, then we need to adequately fund them. And they’re not being adequately funded.
So we’re speaking up about that. We’re asking the public to wake up about this because their interests are at stake. We’re partnering with organizations like the U.S. Chamber of Commerce, who has stated in print that small business, like big business, is the backbone of this economy, of this country. But small business, like big business, depends on the courts.
What good are contracts, what good are restrictive covenants, what good are non-competes, what good are company secrets, if they can’t be protected?
What good is intellectual property if it can’t be patented and protected, etc., etc.? Businesses simply can’t function and succeed if they don’t have the timely certitude of court protection when disputes arise, as they inevitably do in all areas and all levels of business.
We simply need our courts for our country to continue to be successful in an ever more complex global economy. It’s the hub of the wheel when it comes to democracy.
Hawkins: Speaking from The Florida Bar perspective, why the courts should not suffer, or have their budgets decrease like other governmental services during a down economy, is that the pressure on the court system actually escalates and grows in the commercial litigation world that we currently operate in.
More and more business people find themselves, in a down economy, in litigation to work through collection disputes, misappropriation issues. In some ways, the demands on the system will increase as the economy declines.
Certainly if you look at what’s happening with foreclosures, that has been the case. There’s an inverse correlation between the decline of the economy and demands on the system.
Going to (Robinson’s) point, I think it’s a little deceptive to think in terms of the courts just being like another government service. The courts have two basic roles, as I see it.
The court is the only entity charged with constitutional authority in our democracy to check the legislative branch and to check the executive branch.
If there’s a sense that the Legislature has passed a law that’s unconstitutional, who’s going to declare that rule unconstitutional? Will the toll booth operator or the park ranger or the utility service? No.
The only service empowered with the authority in our entire system, as conceived by Jefferson and Madison, with that ability to check the power of the legislature and executive (branch), is the courts system.
We lose sight of that. But that’s how the framers set it up. That’s the function that the courts play.
If the courts system is weakened because of a lack of funding, or if you’re not able to pay good judges adequate salaries such that the system is weakened by a lack of ability, then you’ve got the third branch being weakened by economic factors which essentially empower the other branches.
The alignment that Jefferson and Madison were seeking to achieve will get lost. You’ll have the imbalance.
The constitutional importance of the courts is often just way overlooked.
Florida’s government has been searching for a formula to find that funding means. Government tried it with the foreclosure fees, which are pretty much gone. What’s the next step?
Hawkins: The 2012 session passed a budget amendment to require court funding be largely borne by general revenue dollars, so that means every tax dollar that you and I pay in Florida, a portion of that will go to fund the courts system.
That, frankly, is a very significant step in terms of stabilizing court funding.
Now, we’re not talking about the amount of money. We’re talking about the source of money. What’s been achieved this year is stability in the source and adequacy of money to fund the courts system.
Please understand, this problem that we’ve had in Florida with there not being enough cash in the system is not the product of anybody misspending, or overspending, or any profligate behavior by the courts system.
It’s the fact that the money did not materialize to fund the courts because filings were the primary source of money, and filings declined in 2009, ‘10, ‘11, so that in 2012, the Legislature shifted the bulk of the expense (so) that 80 percent of court expenses next year will be borne by general revenue dollars.
I’m hopeful that the cash crunch that we experienced last year and the year before (does not recur), where the courts actually had to borrow money — imagine that. Call the governor, ‘I need money to keep the doors open.’ How is that a good way to operate a government?
What about the process of confirming judges on the federal level?
Hawkins: It’s on a continuous basis now, and this goes back several years. We consistently have approximately 10 percent of federal judgeships vacant. It revolves around 80 judgeships consistently. Nobody can remember and everyone argues about which party of the two parties started it, but with each administration, one party’s getting even with what the other party did the administration before, and judges just don’t get approved as they need to be approved.
What we and the American Bar Association have argued for years is that any candidate who is voted out of the judicial committee as recommended for a vote, they deserve to have an up-or-down vote.
What happens is that so many of these candidates, they’re put on a shelf and no vote’s taken, and they sit there for a year, year and a half.
Think about the person who’s in that process. What does that person do about her law practice or her relationship with her law firm, or whatever position she’s got at the time, not knowing if and when she’s going to be voted on, let alone a final decision made?
It’s unfair. It has the potential to compromise interests of the potential candidates for appointment to the federal bench. It’s not good for the overall system, and I haven’t ever heard anyone argue that it is good. It’s just that it’s not a politically solvable issue, because the two parties won’t come to an agreement about resolving this to the benefit of the people as a society.
We keep asking, we keep pleading, we keep persuading, and we keep hoping that there will eventually be an awakening of the need to correct the situation and fill the vacancies by having up-or-down votes on the floor of the Senate on candidates who come out of the judiciary committee.
We have had, at some points, as many as 15 candidates come out of the judiciary committee that have had no negative votes in the judiciary committee, and still could not get a vote on the floor of the Senate. It’s just unconscionable.
Freed: The last two judges of the federal judges here in the U.S. Middle District of Florida have taken at least two years after committee to be passed.
Hawkins: That’s an example of how polarization leads to dysfunction. We’re talking about good people who’ve put their careers on hold for this federal appointment, and it’s become a political football.
In Florida we have a problem in the state system where judgeships have been certified as being necessary in certain growth areas that have not been funded because there hasn’t been adequate money.
I’m hopeful that as the economy cycles back, that the amount of money available to fund the courts system will grow. I’m hopeful that judicial salaries can be raised.
I know to the average voter, what a judge makes sounds like a lot of money, but when you’re trying to attract highly qualified, experienced lawyers to leave private practice to serve on the bench, and to be beyond reproach, more and more lawyers are choosing not to because of, partially, the salary and the pension benefits.
Robinson: This year, there will have been more cases filed in the state courts of Florida than will have been filed in the entire federal system of the United States.
Over 95 percent of the cases filed in the United States are filed in the state courts. So when the state courts are underfunded, as they are in Florida, a large portion of the administration of justice is being delayed, and justice is being denied, and business suffers, the public suffers. A mother trying to protect her children on Friday from drugs or violence in the home, suffers. It gets real personal at the local level.
The argument has always been the equal branch of government. Now it seems to be an issue of economics as well.
Hawkins: We studied this issue at The Florida Bar. We have a statistic which shows that in 2009, there was a $17.4 billion loss in Florida economic output due to courts being underfunded. That was a study done by the Washington Economics Group.
That translated into adverse impact on 120,000 jobs in Florida. When I talked to the governor about it, his primary concern was, how can we make the system work even more efficiently so that businesses will not be fearful of getting bogged down in litigation in Florida?
I think there is a perception that Florida is a very tough climate for businesses coming into the state. The governor made it pretty clear that was a concern of his.
The criminal stuff’s going to go through. Constitutionally it has to go through a certain timeframe.
It’s business disputes, the foreclosure disputes, it’s the employment-related disputes, bankruptcies.
Robinson: Few people ever talk about the alternative. What happens if we continue to underfund our courts? What happens if our courts aren’t there to protect democracy and freedom? What happens when the tyranny of the majority cannot be resisted? What if we didn’t have the courts to protect the minority from the tyranny of the majority? Where would we be on civil rights in this country?
People don’t understand. They don’t think about it. As Judge (John) Broderick, who was compelled a couple of years ago to close the courts in New Hampshire for civil jury trials for an entire year for lack of funding, said, when people sit down to supper every night, they’re not talking about the underfunding of the courts. The fact is, they’re not sitting down together for supper every night.
Our demographics have changed. Our lifestyles have changed. Our conversation has changed. It’s more about video games and “Dancing With the Stars” than it is about government and civics responsibility to the community and so on. That’s the reality.
Hawkins: Part of the reason that people don’t focus on the courts is the lack of basic understanding regarding the critical role that judges play and the critical role that courts play. Part of that would be a lack of education. And part of it is experiential.
If you don’t go through a trial, how is it possible to really understand what a trial judge does? Yet it’s fundamental. But if you haven’t gone through it, how do you understand what they do?
I also think people take courts for granted. They think that like roads, they’re always going to be open. They’re always going to be available. And I think that courts are somewhat victim to the polarization in our political system today, because courts, apart from entities like ours, don’t really have a spokesperson who can defend their role.
Robinson: I come from a fairly large family on my mother’s side, and not a small family on my dad’s side. I can’t remember the last time a member of the family had to call upon the local firehouse or the local emergency room, but we go to sleep every night counting on the fact that it’s there, it’s adequately funded. If we need it, it’ll be there for us. Likewise with our courts.
Unfortunately, in society, as we all know from experience, we only seem to value something when it’s not there anymore. And we’re gradually losing our courts because we’re not adequately funding them. So they’re less and less available to fewer and fewer of us.
What about merit retention of judges? Florida Supreme Court justices and District Court of Appeals judges appointed by the governor are on the ballot every six years and voters decide whether they should remain on the bench.
Hawkins: You’re going to see this situation crystallize around the merit retention vote in November. We’ve had this system in Florida since the voters put it in place in a constitutional amendment in 1976, which is a significant fact. I urge you to go back and study why that happened, to help voters today understand that we had a political morass that was plaguing our court system.
That’s why the voters opted to move away from a politicized court appointment system to what we have today — a merit system. But the point that The Florida Bar is concerned about is in our focus group research, 90 percent of the voters we talked to do not have any understanding of what judicial merit retention is about.
It’s a very difficult exercise in our democracy, and it’s going to be critical for the Fourth Estate to help people understand the importance of what judges do, the importance of their roles, to help people appreciate that a judge is not a congressman.
A judge can’t come out and say, ‘I’m strong on defense, I don’t like gun control, everybody ought to own a rifle’ — he can’t say stuff like that. We’re so conditioned in our democracy to vote for people on name recognition, because of policy positions that they take, that they’re popular — that is absolutely contrary to what a judicial election is about.
I’ll have people say, ‘I don’t know who these candidates are on the ballot, these judges.’ And I’ll say, well, that’s probably actually a good thing. Think about it.
If you’ve got a sitting judge, and you don’t recognize that person’s name, and he or she’s on the ballot, that probably means she didn’t get in trouble, because (that’s) the only time you really see a judge’s name.
That’s so different from representative democracy, where you vote for a congressional candidate because you’ve heard his name, you attribute a policy decision to his or her name. None of that can happen with a judicial campaign.
Voters are going to be confronted with this difficult challenge in November.
Robinson: And ask them to just look at other states where millions of dollars are spent on judicial raises. Look at the circumstances of those election situations and the problems that creates in competing contests of persons running, stating positions that they hold on the issues, the money raised from different constituencies, and the polarized competitions that occur. Do they want that?
No system is perfect. You can take any system that’s out there and find things that are wrong with it because we’re human beings. Nothing is perfect. Sometimes the question is, which is worse as opposed to which is better.
You want a judge that’s going to make a decision based on who’s got the most money in the courtroom? Who goes to what church, who’s affiliated with what party, who’s married to so-and-so, who plays golf at what country club?
You want a judge who makes a decision on what the facts are, those admitted into evidence, and what the law is.
What would you like to add?
Robinson: Volunteerism among lawyers is generally unrecognized and unappreciated because of that lack of awareness on the part of the public generally. The American Bar Association, with almost 400,000 members, is made up of volunteers. No one has to belong to the American Bar Association. Nobody is required to contribute all this time. Lawyers doing volunteer service is part of our DNA. It is who we are professionally, it is both our privilege and our responsibility, and it is characteristic of lawyers in this profession, going back to the very beginning.
Most folks can recall through their readings that John Adams heroically stood up and defended British soldiers who were wrongfully accused in the Boston Massacre for having shot into the crowd. But very few people remember that John Adams, as a lawyer in private practice, (as a) volunteer, spent his own dime on his own time to travel back and forth to Europe to garner support for the American Revolution and spent all that time in the Continental Congress helping put together our Constitution and so on.
I challenge that it’s almost impossible to find a legitimate nonprofit anywhere in this country that doesn’t have at least one lawyer giving time and/or money and/or leadership and/or legal representation pro bono.
When we’re working shoulder to shoulder with other citizens in a nonprofit setting, we’re not thought of as lawyers. We’re just the neighbor down the street there pitching in with everybody else.
Are all lawyers perfect? Of course not. Nobody’s perfect. But we’re working very hard to be better, and to make a positive difference in the lives of those we are privileged to serve. That’s our goal.