Chief Justice Daniels’ 2017 State of the Judiciary Address

Here is Chief Justice Charles W. Daniels’ 2017 State of the Judiciary Address, as prepared for delivery:

COMMENTARY: Lt. Governor Sanchez, President Pro Tem Papen, Speaker Egolf, members of the House and Senate, my colleagues in the judiciary, to all my fellow public servants and to those we’re all here to serve,

I appreciate the chance to share the realities we’re facing in the judicial branch, and to report to you how we’re dealing with them – or in an increasing number of ways, unable to deal with them. I’m here in a spirit of collegiality and cooperation, in order to improve our ability – all of us – to serve the people of New Mexico. My primary focus today will be the most critical concern of the judicial branch of our government these days – making sure we have the resources to preserve the functioning justice system created by our constitution and to perform the jobs required by our laws. To set the stage, it’s important to start with some basic principles.

The judicial branch is the only branch with no control over its own funding

The judiciary is the only one of the three branches that has no vote, no veto power in either the lawmaking process or in providing the funding necessary for our own ability to do our job. That’s as it should be, because those are the kinds of decisions that involve political choices, and the judicial branch should never be involved in politics.

Providing justice must be nonpartisan

There’s no place for political considerations in deciding guilt or innocence or sentencing in a criminal case; or deciding child custody or property division in a divorce; or deciding any of the other kinds of disputes that our constitution requires an impartial justice system to be available to decide. All those decisions must be based on a fair and neutral application of the constitutional protections that were reserved by the people when they created this government and of the laws that are enacted by the two political branches, under standards set forth in that constitution.

Funding justice must be nonpartisan

And funding justice also has to be nonpartisan and nonpolitical. For more than 9 years of service on the Supreme Court, My colleagues and I have worked with Representatives and Senators of both political parties in trying to provide and preserve a functioning justice system for New Mexico. I hope we have earned your respect for our nonpartisan approach as you have earned our respect for their nonpartisan approach.

The judiciary has no proper role in deciding what services government will provide or how to raise revenues to fund those services

Both the Legislative Branch and the Executive Branch have important decisions to make about what burdens to place on government, what resources are needed to meet those obligations, and how to gather those necessary resources. In the judiciary, we can’t help but be aware of political debates going on about whether and how the lawmaking branches should increase or reduce services for our citizens, and whether and how to provide the funding necessary for those services, but it’s not our right to presume to advise you on how to make those fundamentally political choices.

But we do have an obligation to tell you honestly what resources we need to fulfill the obligations placed on us by those choices, and to fulfill the promises made by the constitution itself. That’s my mission today, as Chief Justice on behalf of the judicial branch.

No civilized society can survive without a functioning justice system

I want to start with some basic truths. The first is that no self-governing democracy, no civilized society of any kind, can survive without a functioning justice system. Without courts that are open to resolve disputes and apply the law, we’re left to the lawlessness of the streets and the brute force of the jungle. And a government that can’t enforce its own laws will surely fail.

A functioning justice system is impossible without necessary funding

The second truth is that we can’t have a functioning justice system without the funding necessary to make it function. All the laws on the books and all the rights guaranteed by the constitution are just empty words on paper if the courts don’t have the basic resources that are necessary to enforce them. With the judiciary, as with all of government, there’s no such thing as free government. The promise of unfunded mandates may fool some of the people some of the time, but in this room, we all know they don’t work.

Complying with the Constitution is the highest priority of all government

And a third truth is that if we are faced with a choice between funding services, no matter how desirable, and funding constitutionally required functions of government, both the law and the oaths of office we all took to uphold the constitution, dictates the necessary choice. I fully realize the agonizing choices all of you are facing in dealing with this dramatic mismatch between the obligations government has taken on and the revenues you now have to pay for them. But the inescapable bottom line is that we have to first honor the constitution, then the statutes. Then we can divide up what is left among the desirable programs you choose to keep. The constitution absolutely requires those fundamental priorities.

New Mexico’s justice system is failing for lack of necessary funding

I wish I could tell you that New Mexico is providing the functioning justice system promised in the constitution that created the ground rules of our government, but I can’t.

The failure isn’t caused by a lack of will of the judges and employees of the judicial branch. They’ve gone above and beyond the call of duty to try to keep justice working. And we should put to rest inappropriate political slogans that obscure the facts, like saying we should just trim the fat in our budgets or tighten our belts a few more notches.

There is no waste in the operation of the judicial branch

I know from personal experience that there’s been no excess funding or waste in the judicial budget for at least the six years since I first appeared before you as Chief Justice to sound a warning that our judicial branch didn’t have the resources necessary to do its job. For year after year, we’ve been penny-pinching in extraordinary ways, in hopes that we were dealing with a temporary crisis, and all would be well next year if we just held on treading water for a little longer.

I don’t want to spend a lot of our time talking about all the ways we’ve been as frugal as we could be without abandoning our most important responsibilities. Your LFC leadership and the LFC analysts who constantly oversee our operations can tell you how we’ve been the most fiscally responsible part of state government, at every level of the judiciary.

Examples of money-saving efforts

But some examples of what we have been doing can be seen at the Supreme Court. We’ve identified and exhausted every kind of economy measure we can do, and we’re have long been down to scouring for couch change. Most of you have heard about how we use advertising pens and used copy paper to limit expenditures for basic supplies. We have no government vehicles, no personal security, no expenditures of taxpayer money for food or drink or entertainment. When we host meetings with legislators and other government officials or meet with visiting dignitaries like Justices of the United States Supreme Court, the Justices pay those expenses personally out of our own pockets, just as we pay for the cell phones we all use for government business. I haven’t made a single long-distance call at taxpayer expense for years. When Justice Barbara Vigil and I go to the May meeting of the Western region of the National Conference of Chief Justices, we will be the only Justices in the conference who will be paying our own expenses out of our own pockets. We travel all over the state in our own cars to supervise the judicial branch without any reimbursement.

We have reduced mileage reimbursement for the entire judicial branch

Last year, even before the special session, our court ordered a reduced mileage reimbursement rate for all judges and employees and contractors and jurors and others reimbursed through the judicial budget, below the 47 cents per mile that the executive branch pays, down to 29 cents per mile for the judicial branch alone. We can identify no other significant savings we can accomplish without violating legal requirements. We are down to digging for couch change and having trouble finding any more of that. There is simply no fat in our budget and no waste in our day-to-day operations.

The entire Judicial Branch share of the state budget is less than 2.6%

And belt-tightening is also a misplaced figure of speech. If we keep approaching every funding shortfall by saying we just have to do more belt- tightening, there has to come a point when belt-tightening becomes strangulation. We’re now past that point. To put it into context, take a look at pages 12 and 13 of the Unified Budget book you all have before you, showing the Judicial Branch’s share of general appropriations at less than 3% of the funds provided to the three branches of government. When I became Chief Justice for my first term in 2010, the Judicial Branch’s share was 2.76%. We were struggling at that small percentage, we were short 30 judges from what we needed to keep up with our workload and we were below the funding we needed to do our jobs well. But we were keeping our doors open, and we were complying with constitutional requirements. In the six years since then, beginning in 2011, we have seen our share of appropriations drop significantly, ending up in the current fiscal year at less than 2.6%. Despite all our efforts to save pennies everywhere we could, this chronic and dramatic lack of funding is now having serious results.

Our justice system is on life support, and its organs are shutting down

We are a long way past anything that can honestly be called belt-tightening. Our justice system is now on life support, and its organs are shutting down. This isn’t an exaggeration. You have heard testimony about it in interim committee hearings, you have read about it in the LFC newsletters and the news media, many of you have experienced it personally and reported it to me. Let me tell you just a few of the current realities.

We are not able to comply with constitutional guarantees of trial by jury

Article II of the New Mexico constitution guarantees our citizens the right to a jury trial in both criminal and civil cases. It is not an option for the courts to provide. Just as you took a solemn oath two days ago to support the constitution and laws of New Mexico, all judges must take that same oath before they are allowed to make any judicial decision.

The annual jury and witness fund appropriation is supposed to fund that constitutional mandate. But even with our reduction of mileage reimbursement, our jury pay appropriation will run out before this session is over, which everyone knew would happen when the funds were appropriated a year ago. We are a million and a half dollars short of what it would take to keep complying with the constitution’s jury trial guarantee the rest of this fiscal year. Come March 1, our courts will be faced with a choice between violating the constitution and not having jury trials at all, or violating statutes that require jurors to be paid at minimum wage rates and ordering jurors to serve involuntarily without any compensation for their time or expenses. We were told last year that the shortfall we all knew existed would be taken care of by the Board of Finance or by a supplemental appropriation in this year’s legislative session. That’s the kind of kicking the funding can down the road we’ve experienced year after year.

We went to the Board of Finance last month, and they turned us down and told us to come to you for a supplemental. And here we are – but I have learned that because of the fiscal challenge you all are facing, once again, that we may not get enough supplemental funding to make it all the way through the fiscal year, after all. But partial noncompliance with the constitution is simply violating the constitution, just as providing partial justice is injustice.

One of our judicial districts has already stopped permitting the convening of grand juries to investigate and charge criminal cases because of the lack of jury pay, which imposes a larger fiscal burden on magistrate courts and district attorneys and public defenders, who have to conduct many more preliminary hearings. In that same district, the district attorney has announced that she may have to choose not to prosecute certain criminal laws, and the public defenders have begun refusing court appointments for lack of personnel and funding, which takes us to another constitutional failing.

If we cannot comply with constitutional guarantees of right to counsel, we cannot enforce the criminal laws on the books

Over a half century ago, The United States Supreme Court mandated that states could not prosecute any case which could result in a jail sentence unless it provided a lawyer to every defendant who could not afford to hire one, and later clarified that appointed counsel must provide “effective assistance.” That is why New Mexico created the public defender system. Courts are now faced with the possibility of dismissing criminal cases because of the claimed inability of the public defender to take on any more workload without providing ineffective assistance to the clients they already are serving.

If we cannot provide a speedy trial in criminal cases, the constitution requires that we dismiss the cases

Both the United States and New Mexico Constitutions guarantee that in all criminal prosecutions, the accused shall have the right to a speedy public trial. The U.S. Supreme Court has held that if a speedy trial is not provided, the criminal charges must be dismissed and the defendant released. Shortages of judges and court personnel, delays for lack of jury funds, and other backlogs in the courts are resulting in numerous motions for dismissal being filed for lack of speedy trial.

Courts are experiencing closures as a result of funding shortfalls

Because of lack of funding, courts are increasingly faced with sending employees home without pay (“furloughs”) and closing courts to the public. The Supreme Court itself can’t meet its payroll for the rest of the fiscal year and will have to “furlough” employees if we can’t get proper funding. We went to the Board of Finance last month to ask for the $80,000 we need to keep our doors open, but were turned down, again being told that we should come before the Legislature to ask for the funding.

Our courts are suffering from such a high vacancy rate, 15% in our two largest courts and 18% in our magistrate courts throughout the state that a majority of our courts have had to close their doors to the public for part of the normal workday. Within the past week, I have had to grant requests of three different districts to establish reduced hours for their clerks’ offices to be open to the public. In two of them, the 2nd and the 12th, the clerks’ offices are now able to be open only half a day, and the public is locked out the rest of the day.

Because of the lack of needed personnel and the low pay, many of our courts are seeing a 50% turnover in court staff every year. This is a loss of needed experience for the courts, and a financial burden to both the judiciary and taxpayers as a result of the expenses of recruitment and retraining.

Treatment courts are being closed and reduced

Beyond our inability to operate a constitutional justice system, we are losing our ability to provide services and programs that are not constitutionally required but are important for public safety and to save tax dollars. Drug courts and DWI courts are examples. Year after year, they demonstrate a much higher success rate in reducing repeat offenses over locking defendants in jail, at a direct tax saving of eight dollars in taxpayer dollars for every single dollar spent in the treatment courts and a great reduction in threats to public safety that can’t be measured in dollars and cents. But there is nothing in the constitution that says we have to provide them, no matter how much they save taxpayer dollars or protect public safety. So we have to give them up before we give up constitutional rights. We have seen closures of those courts in two districts and a statewide 20% reduction of AOC funding for drug courts. Most of the programs have simply been reduced in the numbers of clients they serve, but have been kept alive in hopes of future funding.

We can’t afford to pay lease payments on our magistrate court facilities

If we don’t receive a supplemental appropriation for lease payments required for our magistrate facilities, we’ll have to short the landlords, public or private, or take more money from the drug court funds and reduce or close more of those programs.

Court-appointed attorney and social worker funding has been slashed in abuse and neglect cases

A $475,000 shortfall in the court-appointed attorney fund is lessening our ability to process abuse and neglect cases, interfering with our ability to protect abused children and lengthening their stays in foster care before they can be placed in a permanent family situation. This results in not only a great taxpayer cost but a great human cost to the children and future consequences that can’t be calculated in dollars and cents.

Citizens are being denied timely access to the justice system

Anyone who has experienced unnecessary delays in getting their criminal or civil court cases resolved knows from personal experience that justice delayed is justice denied. Delaying cases because of lack of funding accomplishes nothing in the long run, and causes great harm in the short run.

We have to work together to look to the future for state financial stability, instead of going from crisis to crisis

All of these things I have talked about are what is happening as a result of the current fiscal crisis and what we need to provide a functioning justice system right now, for the rest of this fiscal year. But we all have to work together to look further down the road. There is an old saying about doing the same thing over and over and expecting different results, and it’s fair to say that it’s not a realistic way to deal with any important decision. We can’t keep underfunding necessary operations, kicking the can down the road, hoping to make up the shortfalls with loans or supplemental or other emergency measures, just careening from crisis to crisis on a wing and a prayer. We can’t keep placing obligations on government without providing the resources that are needed to carry them out. And as LFC leadership keep pointing out, we have to put New Mexico on sound financial footing for the future. Neither I nor my judicial branch colleagues have a proper voice in your legislative debates about how best to do that, but I suspect none of you would want to keep the state dependent on the wild roller coaster ride of oil and gas prices that are beyond your control or ability to predict, and are dependent more on the decisions of foreign cartels or dictators instead of rational government planning.

We have to provide long range planning for a stable justice system

Just as the state has to have long vision for future stability, we need to have long vision for the justice system. We have a two-stage proposal for your consideration. Our Unified budget proposal for FY2018 is the first interim stage, basically to tread water and survive, but it will take an increase to $168 million dollars to accomplish even that, which is still only 2.71% of the 2017 general fund. It takes account of the current mismatch between government burdens and government resources, and does not request what we really need to put the justice system on a sound footing. I don’t have time here to detail the modest requests that it makes.

Our FY 18 budget doesn’t ask for the new judgeships we critically need. It does not fill the vacancies that are crippling the ability of our courts to operate. It does not allow for many of the innovations we could achieve with a little extra funding. But it would enable us to comply with the bare-bones requirements of the constitution, provide jury trials, keep our drug courts open at minimal level, provide the attorneys we have to have in child abuse and neglect cases, and avoid furloughs and court closures.

Long range funding for the judiciary should be benchmarked at 3%

But if we are ever to get beyond crisis-to-crisis government, we have to look beyond coping and hoping. The judiciary needs a minimum of 3% of the state’s appropriations to perform its mission. In the great scheme of things, it’s a small price to pay for justice, and it’s a necessary one. I was encouraged to see the introduction of House Bill 81 by Representative Gentry, declaring the intent of the legislature that the judiciary’s unified budget be funded in such amounts that the courts and judicial agencies are able to carry out their constitutional and statutory powers and duties, and providing that appropriations to the judiciary shall be benchmarked at a three percent level, beginning in FY 2019.

Our proposed FY 18 legislation would increase efficiencies

In addition to our funding requests, our other proposed legislation should be noncontroversial and is all designed to improve efficient operations of the judicial branch. Probably the most significant is SJR 1, introduced by Senator Wirth, which would amend outdated constitutional procedures for appeal to permit changing where appeals should be taken by statute, instead of constitutional amendments, as times and realities change. Not only would it have no negative fiscal impact now, it would allow the Legislature and Governor to approve cost- saving reforms in the future.

What we could accomplish with adequate funding

There is so much that your judicial branch is capable of that we have not been able to accomplish simply for lack of funding. Live-streaming of Supreme Court and other court proceedings, providing full electronic public access to records of court proceedings, following through on our successful experiment with electronic filing of traffic citations to expand it statewide, providing electronic filing in criminal cases the way we have in civil cases – all of these things and more could be accomplished with funding at the 3% level.

What we have accomplished with limited resources

I would like to end with some positive reports about things we have been able to accomplish, despite the funding crisis.

Electronic case management and electronic filing

We have steadily continued to incorporate the Odyssey electronic case management system throughout the magistrate courts and district courts. We are wrapping up the process in the Supreme Court and will finish with the Court of Appeals later this year. Our civil e-filing program, financed by filing fees, is now complete in the district courts, is almost complete at the Supreme Court, and is scheduled for the Court of Appeals this year, as well.

Electronic access to court records for attorneys, justice partners, and news media

After a long and thorough process of balancing needs for access to court documents, privacy interests of persons whose records and personal information may be involved, logistics, and technical considerations, we have promulgated access procedures for attorneys, justice partners, and news media. We’ll finalize our goal to have full public access once we get funding for the redaction software necessary to redact personal identifier information from filed documents, which we are pursuing.

We are establishing Criminal Justice Coordinating Councils around the state

Following the successes achieved in Bernalillo County as a result of Legislative and Court leadership, the Supreme Court has ordered creation of Criminal Justice Coordinating Councils in each judicial district to bring together all components of the criminal justice system to achieve greater efficiencies and coordinated efforts in processing criminal cases. And the Supreme Court has started a similar process at the statewide level.

We are following through on bail reform

I have to mention last year’s SJR 1 bail reform amendment, which passed both houses of the Legislature unanimously in an extraordinary show of bipartisanship and was approved by New Mexico voters with an extraordinary margin of 87% to 13%. It established an evidence-based analysis of threat to public safety and flight risk to distinguish between those who would be released or jailed before trial, instead of the dangerous, unfair, and costly process of letting out whoever could buy a bail bond and jailing those who couldn’t. Our rules committee has just recommended a comprehensive set of rules to establish procedures for following through on the constitutional change and we are working on education and training processes for our judges and justice partners. It will be a long-range project to convert words on paper into working realities, but I am convinced that if we stay the course in following through, we’ll achieve the greatest positive reform in criminal justice in all my years in the law. Other states are looking to us as a model for their own bail reforms efforts.

We cannot let our justice system – or our Constitution – fail

There is so much more that we could do with funding that gets us out of the treading water stage, more that we could do to promote public safety and public justice, more that we could do to achieve long-term savings of tax dollars. As public servants, we’ll all have limited opportunities to make our contributions before we pass the task to those who follow us.

We look forward to working with all of you in this session and beyond, to make sure that we honor the Constitution, to make sure we protect and preserve our justice system, and to make sure we pass on to our children the government of the people, by the people, and for the people that was passed on to us. We can’t let our justice system – or our Constitution – fail.

Charles W. Daniels is the chief justice on the N.M. Supreme Court.