Clyde Mueller / The New Mexican
Henry Valdez, director of the state Administrative Office of the District Attorneys, and Robert P. “Rick” Tedrow, a district attorney in San Juan County, discuss issues concerning New Mexico district attorneys during a House Judiciary Committee meeting in late January.
Every year, legislators descend on the Roundhouse clutching fistfuls of tough-on-crime bills aimed at keeping New Mexicans safe, and, cynics might say, helping themselves to get re-elected. Right behind them come officials from the state judiciary and related agencies, hats in hand, begging for more money with which to prosecute, defend and incarcerate the state’s defendants.
This year, with the state mired in a fiscal crisis and the courts and public defenders warning that they may soon be unable to pay juries or defend the indigent, the pleas have reached piercing levels, pitting court officials against the governor and unleashing partisan bickering in the Legislature.
The latest skirmish came Thursday when Gov. Susana Martinez used her line-item veto power to excise $800,000 in emergency funding for the courts from a routine bill passed by lawmakers to pay for the 60-day legislative session. Without that infusion, state Supreme Court Chief Justice Charles Daniels warned, there will be no money to pay for jury trials beginning March 1, three months before the end of the fiscal year when a new funding cycle begins.
Court officials say the veto exacerbated an already dire situation for the courts.
“We’re facing requests to dismiss serious criminal cases because we have not been able to provide speedy trials as our constitution requires,” Daniels said.
Martinez’s office said Friday she vetoed the emergency funding because lawmakers failed to hold hearings on the bill to examine “a way that reduces costs and protects them into the future. Rather than ask the courts why they spend more on administration than justice, the Legislature did not hold a hearing or even debate it on the floor.”
“The governor was a prosecutor for 25 years and uniquely understands the importance of our courts,” Michael Lonergan, the governor’s spokesman, said in an email Friday. “She’s going to fund them, but she will not allow lawmakers to use our courts as a political prop in order to hide the fact that they increased their budget.”
The office said the governor would convene an emergency meeting of the state Board of Finance to work with the judiciary to reduce costs and fund the courts. The meeting is scheduled for Wednesday. The board is a seven-member panel chaired by the governor that oversees fiscal affairs for the state.
Arthur Pepin, director of the Administrative Office of the Courts, said he welcomed the meeting.
“We are happy to answer any questions and are transparent with regard to our spending, and we are confident we efficiently spend the taxpayers’ money,” Pepin said. “We appreciate any support the governor can provide through the Board of Finance or otherwise regarding court funding.”
Even before the session, the Administrative Office of the Courts — which includes the state Supreme Court and Court of Appeals, as well as district, magistrate and municipal courts — had asked the state Board of Finance in December for emergency funding. The board denied the request, telling Pepin he couldn’t rely on money typically used for real emergencies — such as fighting summer wildfires — to pay for routine operating costs. Instead, the courts should hold lawmakers’ feet to the fire and force them to provide adequate funding, or explain to the public why they refused, the board said.
Pepin and other justice partners have been calling for judicial reform for the past several years, saying they must have more money or fewer clients. This year, they say, the funding shortfall has reached crisis levels.
Pepin said he routinely borrows from the following year’s budget to pay for the current year’s jury expenses, creating a vicious cycle that puts him in the position of having to ask for emergency or supplemental funding for jurors year after year.
This year, he said, he can’t even do that because the jury money will run out before his general fund budget request for next year has been approved. He said he can’t legally encumber funds he doesn’t even know he’ll have.
Rep. Nate Gentry, R-Albuquerque, has introduced a bill that would provide supplemental funding to pay for juries in the court system and prevent employee furloughs, but only at the Supreme Court. Pepin said if that bill fails, he’ll have go back to the Board of Finance and ask for the money again.
If he doesn’t get the money before March 1, Pepin said, “very bad things” will happen.
The courts will stop scheduling jury trials, Pepin said, and the ones now on the calendar will have to be rescheduled, increasing expenses on the already underfunded system. Such moves could also prompt defendants whose cases have been pending for a year or more to file motions for dismissal based on their right to a speedy trial, he said.
“There is only so much you can load on a mule,” Chief Justice Daniels said during his State of the Judiciary address last month. “At a certain point, if you load a mule down anymore, the mule will collapse … and it doesn’t do any good to curse the mule or beat the mule.”
But while judicial officials are sounding alarm bells and using words like “constitutional crisis,” court data show that funding for the courts and the number of court employees have increased over the past decade while the number of cases has declined.
In fiscal year 2007, for example, the courts got about $129.3 million and had 1,915 authorized full-time employees to handle 405,131 cases. In fiscal year 2016, the judiciary got about $161.5 million and had 2,008 authorized employees to handle 367,907 cases.
But, Pepin said, not all cases are created equal. For example, he said, the biggest driver in the reduction of cases was a decline in the number of traffic cases in metro courts, which fell from 6,354 in 2009 to about 2,695 in 2016. The number of bench trials, which demand more resources, have gone up, he said.
And, he said, the types of programs the courts fund has changed in the last decade. For example, the courts now spend more on drug courts — which he said cost the courts more but ultimately save the state $9 for every $1 spent. The courts also are using more interpreters than they did in the past, he said, and the system has a greater need to fund clinics to assist a rising number of self-represented litigants.
The judiciary is the only branch of state government that has no direct say over its own funding. And with about 90 percent of its budget going to personnel costs, it has few places to conserve funds during times of economic scarcity.
Court and legal officials say the real-world consequences of judicial underfunding are myriad and interconnected.
For example, Pepin said, the court system has a vacancy rate of about 11 percent — in part because of low pay, which makes it difficult to attract and keep employees — and has had to reduce the hours that magistrate courts are open to allow staff to catch up with the work. As a result, he said, cases take longer to process and prisoners spend more time in taxpayer-funded jails waiting to face a judge.
The challenge of delivering justice with dwindling revenues is not unique to New Mexico.
“Everything that has happened or is happening in New Mexico has happened in most other states over the last eight to 10 years, starting with the Great Recession,” said Bill Raftery, a senior analyst at the National Center for State Courts, a nonprofit research organization aimed at improving state court systems.
Raftery said states facing across-the-board budget deficits, like New Mexico, have taken similar measures, including furloughing court employees and reducing the number of hours courts are open.
“It’s not something the courts want to do,” he said. “But if there is no money, there is no alternative.”
Raftery said there is no magic formula for determining what constitutes “adequate” funding for a state court system because each state funds courts differently and has different needs based on the number and types of cases it handles.
“There is caseload, and then there is workload,” Raftery said. Naturally, he said, murder trials take more resources than traffic tickets. He said a move toward more alternative dispute resolutions means simpler cases are often resolved before they get to court, but the cases that actually go to trial are the more complicated, labor-intensive ones.
Raftery said the starting place for determining court budgets is the “workload,” which he said is usually determined by studying the number and complexity of the cases and the number of judges that would be needed to handle them, then accounting for the number of support staff needed for each judge, the pay rate for the positions and the number of work hours in the year.
Pepin said the state paid the National Center for State Courts to conduct such a study in 2006, and it determined that New Mexico needed more judges. But, he said, the economy tanked shortly thereafter, and the courts have had to make do since then.
He said he was able to get legislative approval to update the study a few years ago, but Gov. Martinez vetoed it.
Raftery said some states also have turned to fees and fines as a way to get money that isn’t coming from their state general funds, effectively passing on those costs to citizens.
“So a $50 speeding ticket suddenly becomes $75 or $100 to keep the courthouse open,” he said.
In the past few years, Pepin said, New Mexico’s courts have lost about $1.8 million in annual revenue that used to come from two fees. One, a $4 fee on traffic tickets, used to bring in about $500,000 per year until it expired in 2014.
Pepin said Martinez vetoed a measure that would have extended the fee.
Pepin said the revenue stream from a $10 to $20 fee on new civil filings used to bring in about $1.5 million per year, but that amount has gone down because the number of filings has gone down and the number of indigent litigants who qualify to have the fee waived has gone up. Most of those fee revenues help pay for new facilities.
Chief Public Defender Ben Baur — whose own agency recently stopped accepting cases in the Hobbs area, saying its attorneys were buried under unmanageable caseloads — said one challenge to matching judicial funding with needs is that there is no direct connection between proposed crime bills and the amount of money allotted to the agencies that must carry them out.
Bills go through a fiscal impact analysis. But determining the true cost of implementing a new law is complex, Baur said.
For example, Baur said, advocates for increasing criminal penalties often argue that harsher potential punishments will prevent people from committing crimes in the first place, so they could have a neutral or even positive fiscal impact on the justice system.
But in his experience, he said, it’s rare for criminals to weigh the legal consequences of their actions when deciding whether or not to commit a criminal act.
“Most people are not at that moment thinking about the penalty and thinking, ‘Gee, last year the penalty was X and now it’s X plus one, so I’m not going to do it,’ ” Baur said. “It’s an interesting question that we struggle with as you pass these things: ‘Where is the money going to come from?’ And they usually say, ‘We will worry about that later.’ And it is later.”
Even if a fiscal impact statement is right on the money, Daniels said in a recent interview, there is nothing to keep legislators from passing laws they don’t have the money to enforce.
The fiscal impact statement is just designed to advise lawmakers, Daniels said. “So, often what is done is what is politically popular,” which means news laws often amount to unfunded governmental mandates.
Gentry and state Sen. Daniel Ivey-Soto, D-Albuquerque, are co-sponsoring House Bill 81 during this session, a measure that proposes benchmarking no less than 3 percent of the state general fund budget for the judicial branch each year.
If the bill were in effect this year, the judiciary would get about $177.9 million for fiscal year 2018, a 13.9 percent increase over its fiscal year 2017 budget of about $161.8 million, which amounts to about 2.6 percent of the overall general fund, according to data provided by the Administrative Office of the Courts.
In the meantime, the state Supreme Court has issued an order directing district courts in each of the state’s 13 judicial districts to establish Criminal Justice Coordinating Councils made up of representatives from the judiciary, law enforcement, public defenders, district attorneys and local county jails to brainstorm ways to operate more efficiently.
Chief Justice Daniels said he hopes the councils will help the partner agencies take a more holistic view of the justice system and address the domino effect that occurs when funding gaps at one agency create problems at a related agency.
For example, when the Administrative Office of the Courts doesn’t have the money to pay attorneys to represent families whose children have been taken into state custody, those cases take longer to resolve. That means the children have to spend more time in foster care, costing the state more money and often creating more emotional chaos for the children.
“Ultimately, under our system of government, it’s really the choice of the political branches to decide how much of a burden to place on government and how much resources the government will gather to carry out government burdens,” Daniels said.
“But they have to face the reality that those burdens and those resources have a rational connection, that you can’t place more burdens than you have resources,” he said. “Those things have to be in balance. That’s just a fact of law, almost like a law of physics.”
Contact Phaedra Haywood at (505) 986-3068 or phaywood@sfnewmexican.com. Follow her on Twitter at @phaedraann.