Several years ago, a prominent Senator from my home district spoke to the Kansas Judicial Conference about recent legislation. One of the first things he said was that the Judicial Branch budget was going to have trouble in the future, that the court system was going to have to find its own solutions to pay its own way, and that we would have to look more to “user fees” in the future to generate revenue for the courts. My first thought was, “Whoa! Where did he go to law school anyway?” I could not tell whether he was buying into that mantra of “user pay,” or if he was simply the bearer of bad news. But, that is the fight was seem to have today. There is a fundamental misunderstanding of our constitutional and historical function that is turning the courts into another revenue making agency, as though we were selling state privileges, like hunting licenses or permits to cut hair.
During the years between college and law school, I worked for the New York State Education Department. Frequently, during breaks and over the lunch hour, you could find me in the State Law Library browsing or checking out the works of Joseph Story, Carl Llewellyn, and Oliver Wendell Holmes, Jr. One of the treatises I read cover to cover was Prosser on Torts – long before going to law school. Law and government, the concepts of ordered liberty, excited me. Those writers and others sold me on the significance of the independent judiciary in government. Studying the tripartite form of government seen throughout the United States, I was moved to start my journey to become a part of the Judicial Branch. I was not about making new laws or setting new policies, but about assuring stability and continuity in the principles by which our free society could continue to function. I pinch myself every day realizing that doors beyond my ability or power to move were opened to put me in the place to do the job that I so passionately am dedicated to perform.
The Judicial Branch, the court system, does not serve merely the litigants before the court in a particular case. The Judicial Branch, contrary to those who want to politicize the courts with chants of “judicial activism” and other slurs, is all about predictability and stability under law. The courts, as every other branch of government, are bound by the constitutional principle of equal protection under the law. We live by the concepts of stare decisis. If that were not so, there would be no reason for funding our law schools or for studying law. Lawyers study law and court decisions in order to advise their clients about likely outcomes so that clients and businesses can govern their own conduct accordingly in order to avoid problems. Courts interpret and apply the law, not merely for the benefit of the litigants, but for all of the community. That independent governmental function insures freedom and protection of rights. It lends predictability and stability to our society.
The court should not be funded by user fees beyond a nominal filing fee. Access to justice should not be limited by mounting costs and surcharges to get in the door. Court records, likewise, should be open, free and accessible to all. Let’s not allow politics and political posturing to close the courthouse doors or in any manner limit access to justice under law or charge anyone to review, study, to question, criticize, or rely upon the court’s decisions. Out of varied facts of the individual cases litigated, we serve to govern all. Judicial Branch funding is and always should be a general fund obligation. Funding requires revenue. Revenue-raising is taxation. Taxation is political. And, the political, revenue-raising Branch of government is and should remain the Legislature.
It is incumbent upon the bench and bar, as officers of the court, to reinvigorate our professional calling and then re-educate ourselves on the historical and constitutional significance of the independent, yet fully funded, Judicial Branch of government. Then, we must carry that message to the public and to our legislators. We cannot reverse this tide that would undermine our balanced government if we do not stand against the mantra of “user pay” the accusations of “judicial activism” and the efforts across the country to politicize the judiciary.
The plurality of American society needs a fully funded, free and independent judiciary in order for this constitutional republic to survive.
James F. Vano, District Judge, Division 2, Johnson County Courthouse, Olathe, KS 66061, (913) 715-3760, FAX (913) 715-3769