At the start of this year, the
BGR sued a special committee drawn up by the state’s Supreme Court by legislative
instrument, with its members, elected judges, and community representatives, to
review judicial workloads across the state. It asked that records be produced
about its activities, after multiple requests to different parties in the committee
went without success. The Court itself refused to release records with its
lawyers arguing that, uniquely among Louisiana policy-making institutions it
would seem, its committees can shield even in rule-making or administrative
law-making situations this information, and pointed to a case where the Court declared
it didn’t have to release such information under the notion of separated
powers. The BGR claims as it is the Legislature that determines the judicial
structure in the state, sunshine laws about its activities apply here.
This means the BGR is unlikely to
win, for it’s unlikely that the Orleans Parish District Civil Court, where the
suit was filed, or any judge anywhere would cross up the body that largely
controls the operation of the state’s court system. And whether the releasing
of the information would make a difference in the outcome of the committee’s
deliberations is as unlikely.
What must be understood here is
that politics, rather than ideals of good government and efficient use of
taxpayer resources, mainly drives this debate. As previously
noted, the BGR last year issued a report
– using the committee’s own metrics – that showed vast disparities in workloads
across districts, with Orleans in particular having four times the number of
judges for a particular recommended workload. It also called for use of the National Center for State Courts’ more refined
measurement system to make the calculations, and soon because of an impending
Feb. 15 deadline for issuing a report.
The committee did hire the
organization to present results, but only two months ago, and has scheduled a public
meeting (only its second in its entire lifespan) Jan. 23 that may reveal them.
Unfortunately, past activities of the committee don’t leave a lot of confidence
that it can meet deadlines, with reports coming in often years after they were
supposed to according to the legislation. The fear observers like the BGR have
is there’s a deliberate slow-walking going on because any changes to the state’s
judicial structure would have to occur this legislative session as the round of
district elections occurs this fall, and as judges’ terms constitutionally cannot
be shortened, the next opportunity for change would be for 2020 given district
judges’ six-year terms. They are concerned that a lack of information from the
committee would provide cover for the Legislature failing to act.
Many citizens don’t understand
the somewhat symbiotic relationship between legislators and judges. In
Louisiana, especially at the district (lowest) level, even as these are elected
positions, incumbent judges almost never lose reelection bids, and hardly ever
draw serious opposition. The pay is as good or better than the governor’s, with
workloads largely self-determined, and places judges in a nexus of political
influence if they choose to exercise it, including throwing support behind
candidates for the Legislature. It’s little wonder that lawyer-legislators who
acquire a taste for being supported by the public in a relatively unstructured
part-time job don’t gravitate towards a full-time version by trying to move
into that job (such as with the latest
example), one they feel they can hold until the constitutionally-mandated
retirement age of past 70.
Therefore, the last thing some
would want to do is to reduce the number of judicial slots statewide, miffing politically-influential
sitting judges who would lose their jobs and also closing off opportunities for
their own future careers. This provides every incentive to resisting any
actions that would cause that, including a report that in all likelihood will
replicate largely the BGR version of last year. They may not be able to avoid
it, but they at least can string out fulfilling the mandate of the committee – which
faces no penalty by not wrapping up all of its business by the deadline – in order
to give enough legislators the excuse that they can’t act until they have all
information.
Adding fuel to this fire, last
week the Baton
Rouge/New Orleans Advocate published
information that in Orleans, the district identified by the BGR as having
courts with some of the lowest workloads per judge in the state, the number of
cases going to jury trial, which involve much more work by a judge than cases
plead or those without utilizing a jury, has fallen substantially in the past
couple of years. While this depends also on prosecutorial decisions, it
provides more evidence that the system may be overbuilt.
Only if enough members of the
Legislature feel strongly enough that efficiency gains need to be realized by
reducing judgeships can this inertia be overcome. Even though only around a
quarter of Louisiana legislators have a legal background, those others who come
from districts where judges exert influence over campaigns may feel skittish
about supporting such an effort, or in logrolling fashion even if not directly
affected may not want to cause enmity from their colleagues who therefore might
strike back on something in the future that does affect them, and thus doom any
reform attempt.
While the suit itself may go
nowhere, its filing can raise the profile of this issue, where elites outside
of the legal community can become activated to realize a goal of smaller
government that takes less of their money and/or leaves more for other
priorities begins with taking whatever data are available for right-sizing
Louisiana’s judiciary now, not later. This groundswell may be needed to get
reluctant legislators to act, and thus the mere attempt of the suit is
justified and welcomed.
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