Suit welcomed to keep judicial reform pressure going

Speaking of lawsuits that not only need to go forward, but also of one that actually has, New Orleans’ Bureau of Governmental Research correctly put more pressure on balky state legislators to prompt efficient use of taxpayer dollars, even if that particular an effort that may end up in vain.

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.