Tuesday, May 19, 2009

Funding the Justice System

My Minnesota attorney license fee just went up to help pay for the court system. For months, Republican Governor Tim Pawlenty — he of the “no new taxes" pledge but a thousand by-any-other-name fees — had been trying to cut the budget for an already-strapped court system. By all accounts, he initially wanted to do it by as much as ten percent.

The plot thickened, however, when the former law partner he had appointed as chief justice of the Minnesota Supreme Court strenuously opposed the proposed cuts. The battle was fully joined when the heavily Democratic legislature also opposed the governor. The result was a hard-fought donnybrook of a type surely not envisioned by Montesquieu and other Enlightenment thinkers when they speculated about the supposed advantages of separation of powers among equal branches of government.

After much gamesmanship and give and take about who would “budge on the budget,” on May 18 the legislature passed, and the governor signed, a compromise court funding plan as part of an omnibus public safety appropriations bill. Under the deal, the courts will take “only” a one percent overall funding hit, as long as they increase numerous filing fees and tack a new public defender fee on attorney licenses.

Politics is of course the art of the possible, and avoiding more drastic cuts is a relief, given the governor’s stance. But as the president of the state bar put it, it’s not as if happy days are here again. Indeed, one might well ask, as the chief state public defender did, shouldn’t the justice system be funded out of general revenue rather than users’ fees and surcharges on attorneys? It seems to undercut the ideal of equal justice when the system itself is not funded equally by all.

“Taxes are the price we pay for a civilized society,” Oliver Wendell Holmes famously said in a speech in 1904. But that was long before Grover Norquist and the self-styled Taxpayers’ League. A century later, we struggle mightily to maintain what we once took for granted.

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