Massachusetts Bar Association

Address by Margaret H. Marshall
Chief Justice
Supreme Judicial Court
January 26, 2002

President DiMento, members of the House of Delegates, members of the Massachusetts Bar Association and the Massachusetts Bar Foundation, ladies and gentlemen.

"[T]he business of the law is to make sense of the confusion of what we call human life - to reduce it to order but at the same time give it possibility, scope, even dignity." These are the words of the great American poet Archibald MacLiesh, himself a lawyer. They were not written about the Massachusetts Constitution, but they eloquently capture the principle of justice embodied in that great document. As we move from the cataclysmic events of the past few months to the challenges ahead, I want today to pause, to reflect, and to re-affirm the central role of justice in our Commonwealth.

In many nations around the globe, impartial, prompt, and effective justice is only a dream. For us, here, it is a living, evolving part of our society, centered in our courts. We have so much more to celebrate than do those in societies that are only now beginning the long struggle to establish democratic institutions . . . China or Siberia or Rwanda, where our judges have visited. We have so much more to celebrate. But for me, here, at home, justice is something that I do not take for granted. I will never take it for granted. My life's experience has taught me that justice is what the fight is all about, for justice is the lynchpin of those freedoms we hold most dear.

Across Massachusetts, thousands of people enter our courthouses every day. They come as lawyers and litigants, as jurors and witnesses, as friends, family, and curious observers. They seek justice on issues that run the gamut of human experience: family disputes, criminal matters, civil rights, commercial and financial disagreements. The viability of our justice system, the strength of each individual's willingness to accept and obey our orders, depends on those who use our courts, and what they think about how we do our work. And what they think depends on the totality of what they observe and experience in our courts.

Yes, people measure the quality of justice first by their view of a judge's or a jury's decision. In Massachusetts that view is a positive one, overwhelmingly positive. I believe that the quality of the decisions reached by our judges at all levels is unsurpassed in any other State. In fact, I believe that our judges are among the best anywhere. Our recent evaluations by you, the members of the bar, confirm that overwhelmingly positive view. I pay tribute today to this bar association for the leading role that you have played in moving forward an effective program of judicial evaluation.

But while on that subject let me make one observation. Our judges are among the best. But they are not adequately compensated. We are falling far behind other states and woefully behind the federal courts in judicial salaries. Chief Justice Rehnquist has made an eloquent plea that low salaries may have a profoundly negative effect on the quality of justice. I know that these are difficult times. But we should compensate our judges commensurate with the important role they play in our society.

Substantive justice - the outcome of a given case - and the administration of justice are closely intertwined. Today, however, I want to separate them - and to focus my remarks on the administration of justice. People measure the quality of justice not only by result, but also by a host of other factors - by the time that elapses between filing and resolving a case, the availability of qualified interpreters, the wait in a courthouse for a case to be called, the cleanliness and accessibility of our buildings, interactions with court employees, and myriad other contacts with the judicial system, large and small. The people's confidence rests on how well we in the judiciary carry out all of our functions.

In the best of times, the task of administering justice in our diverse, fast-paced society is complicated. In difficult times, the complications multiply. These are difficult times. I talk to you today with a sense of urgency, addressing my remarks to two particular concerns - financial, and the governance and management of our court system.

Let me turn first to financial matters. On December 1, 2001, the Commonwealth enacted its budget for the fiscal year ending June 30, 2002. The trial court received $33 million less than we had requested to maintain basic operations. These cuts reflect harsh economic realities confronting the Commonwealth. The State's financial resources are severely strained, with no immediate prospect of recovery.

The Judicial Branch is not alone in confronting budgetary challenges. Sole practitioners, those of you who work in law firms, our neighbors, friends, and family in other walks of life are also suffering in ways few could have imagined even a year ago. We are mindful that others are struggling as well. And how we and the other branches of government respond to these new realities will be a challenge for each.

The dynamics among the three branches of government are always in play. In a recent Report to the Federal Judiciary, Chief Justice Rehnquist remarked: "I am struck by the paradox of judicial independence in the United States; we have as independent a judiciary as I know of in any democracy, and yet the judges are very much dependent on the Legislative and Executive branches for the enactment of laws to enable the judges to do a better job of administering justice." (1)

Apart from the formal submissions to the Legislature and formal advocacy on behalf of the judicial branch, I have on several occasions during my short tenure as Chief Justice, approached the Legislature with specific funding needs for the courts. I have done so when Chief Justices have identified particular areas of special concern and backed them up with facts and figures. The Legislature has responded affirmatively. It responded when we made the case for more security in our courthouses and for funds to improve our court facilities. It responded when we explained the crisis in the Appeals Court and of the critical need to fund information technology in the appellate courts.

But these are different times, difficult times. This year the budget cuts deeply, very deeply into our basic operations. The fiscal crisis in the courts is not confined to Massachusetts. I spoke last week with Chief Justices of New York, California, Idaho and Wisconsin, and I can report first-hand that all are facing similar difficulties. The press has reported that New Hampshire courts suspended almost all civil and criminal jury trials in the latter half of December and will need to do so again for four months in 2002.

No one could have predicted the magnitude or suddenness of the downturn. But in July, 2001, Chief Justice Dortch-Okara and the Chief Justices of the Trial Court instituted significant cost-saving measures. When staff have left, their positions have been left vacant. Administrative expenses have been cut to the bone. Even with these savings, the trial court still faces a significant budget shortfall. Eighty per cent of the budget goes to personnel costs, so additional savings now will have to come from lay-offs. Chief Justice Dortch-Okara has not yet determined the precise number of lay-offs. Whatever the number, the process will be painful. But the Justices are adamant that layoffs be made in a principled, structured fashion that minimizes the effect of the reductions on the Trial Courts' vital operations.

The budget presents a monumental challenge to our judicial system. But every challenge is an opportunity. We will rise to the challenge. We will take the opportunity to reexamine the way we conduct our business, to subject our accustomed ways to the most rigorous scrutiny.

Judicial independence has been crucial for our success as a democracy. It has been the engine of the greatest economy the world has known. It has made this Commonwealth, small in size, tucked into the northeast corner of this huge land, a great state. Judicial independence is critical for our future, and for the generations who follow us. We must and we will fight to protect it. We must and we will ensure that the Judiciary is able to fulfill its constitutional mission whatever the status of the state's economy. For at a certain point, the quality of justice itself may suffer from shortages of staff, services, facilities, and equipment. And we must be in a position to inform the other branches of our needs, with clarity and credibility. I respect both the legislative and the executive branches. I intend to continue to work with them, to apprize them of the real needs we have and the real consequences of underfunding.

Ultimately, the continued strength of our judiciary rests on the actions of many people from many quarters. The Massachusetts Bar Association and its individual members have been and continue to be staunch allies of the judiciary and strong advocates on its behalf. I ask you to continue these efforts. In particular, I ask you to support those concrete measures we place before the Legislature.

Chief Justice Dortch-Okara has already requested supplemental funding to cover essential services in the courts. We need that supplemental funding, and we will make the strongest case to explain why this is so. What are essential services? One example. . . We are significantly underfunded in the central account that pays for interpreters, guardians ad litem, stenographers, and others who provide essential services in the trial court. Our sessions cannot go forward without them. They must be funded.

I will also ask the Legislature to enact changes in the Court's authority to transfer funds. During the recently-concluded budget process, we sought a statutory change to permit greater flexibility in the transfer of funds from one account to another, both within and between Trial Court Departments. A similar request to the Legislature has been made by Chief Justices and others for years. The requests were never before granted. This year, recognizing the urgency described by Chief Justice Dortch-Okara and me, the Legislative leaders acted favorably. The authority to transfer funds has been enormously helpful. It has enabled the Trial Court to allocate resources in a more rational manner. But this new transfer power will expire at the end of April. After that Chief Justice Dortch-Okara will again be prohibited from transferring funds between departments, and she will not be able to transfer any funds without specific Legislative approval. The ability to use funds where they are most needed is a critical tool we must have in this time of tight budgetary restraints.

Let me turn now to a second issue: court governance and management. I expect that many of you have heard criticism of the way our courts are staffed. It has been suggested that court positions have been created that are not needed, or not needed in the courts where they have been assigned. Whatever the validity of these criticisms, for too long staff have been assigned to courts in an unsystematic way.

Courts cannot work well without a rational system of deploying staff. No organization can. When voluntary and involuntary staff departures will reduce significantly the number of employees available to conduct court business, the staffing of our courts must reflect a considered analysis of the true needs of the system. We must develop uniform, objective workload formulas and those must govern all hiring and allocation practices. But throughout our system there are few objective models to assess where staff are optimally needed. The Justices have therefore asked Chief Justice Dortch-Okara to determine how many people are necessary at each court to perform its essential services. She has assured us that she is working on this critical project.

This is not simply a numbers game. It means identifying how many clerks, interpreters, court officers, probation officers and others are needed in every court, for every sitting. No organization could survive without such basic information. What managing partner at a law firm would allow new associates to be hired in the real estate department, after the real estate boom has ended, and leave the bankruptcy department understaffed as bankruptcy filings soar? I could make the same point about hospitals or banks, or any other organization, public or private. Each court must have staff sufficient to meet the demands of the public we serve. No court should have staff who are not necessary to serve the public. And every member of the staff of every court must be accountable to the management of the Judiciary.

We have much work to do. Like any organization, we must reform ourselves to meet the demands of the times. But we must do so in a way that enhances the people's confidence in what we do. In the Appropriations Act for fiscal year 2002, several "outside sections" were added to the budget that made major changes in the Trial Court's governance structure. The outside sections appear to vastly increase the powers and autonomy of the clerks' and the Commissioner of Probation to deploy employees in their respective departments. Previously, much of this responsibility had been centralized within the office of the Chief Justice for Administration and Management. This was a key element of prior court reform efforts, widely-hailed reforms. With those reforms, we made real progress toward transforming a balkanized system into a centralized and coherent one. Leaders and members of this Bar Association played a pivotal role in securing those reforms.

Reasonable minds can and do differ as to what our courts must do to become more efficient, to work smarter and work better. But we all agree that the Judicial Branch cannot accept piecemeal changes that accrete over time in no rational or systematic fashion. It is the judges who are ultimately responsible for substantive justice and for administrative justice. They cannot do so unless they have the authority to carry out their responsibilities. Unilateral changes to the court's management structure calling that into question will only undermine the effective functioning of the Judicial Branch, which the people have a right to demand. They will also be ineffective in the long run, or worse.

You know and I know that there are management issues that stand in the way of the delivery of justice. Today I ask you to work with me to remove those obstacles. We need an organization that can adapt quickly and efficiently to the budget that the Legislature enacts, in good times and in bad. We need to improve the manner in which funding requests are presented to the other branches. We need to communicate with the other branches about how severely our work is hindered by haphazard methods of staffing. To be an independent judiciary in these increasingly complex times, to make the changes and improvements to the administration of justice that are critical to our ability to deliver it, requires that all who are responsible for the operation of the courts be accountable to the leadership of this branch of government.

Getting the right number and kind of employees at each court is but one element of overall governance. The ability to transfer funds and to deploy staff where they are needed are necessary prerequisites, but they are not sufficient. Even putting aside the recently enacted outside sections, it is clear that the administration of our courts has not achieved the worthy goals of all those reform efforts of the past decades.

What is the best, most effective administrative structure for our courts as we continue into the 21st century? The question is urgent. The answer will require the creative thinking and careful deliberation of all three branches of the government, members of the bar, and community leaders.

In the coming weeks, I will enlist the assistance of the best minds in the Commonwealth to examine and make suggestions about the very foundational structures of our court administration. My plan is to make sure that we will be able to say with confidence that the administration of the courts is significantly advanced, and is compatible with 21st century management practices. I pledge to you two things. There will be no question that is not asked. You will be told of every answer that is given.

The people of the Commonwealth have a right to expect no less, if the great concept of an independent judicial branch, brought to life by John Adams, is to endure.

I aim to meet one goal and one goal only: enhancing the quality of justice in the Commonwealth. We will meet that goal. How will we do that? The support, collaboration, advocacy, and influence of this Association and others are key to ensuring that the proposals I have just outlined become realities. You are key to changes we will want to make in the future.

As I promised in my first speech to you, two years ago, I have travelled from one end of this Commonwealth to the other, listening and learning. I have listened to associate court officers and secretaries. I have listened to presiding justices, to elected clerks, and to probation officers. I know that that time was well spent. I am now better equipped to draw on the expertise of people, both within and outside the court system, to craft a governance management structure that is worthy of the people of the Commonwealth.

My life history has taught me that revolutions are not made overnight. But my life history has also taught me that revolutions can be made. Revolutions can be successful, even if the task seems daunting. Revolutions are not for the faint-hearted. Revolutions are not for Johnny-come-latelys. And they are not for people who sit on the sidelines. We need a revolution in the administration of justice in Massachusetts.

My two years as Chief Justice have reaffirmed my belief that there are countless people inside and outside the Judicial Branch who are willing to join, who are eager to join, a revolution in the administration of justice. I am deeply appreciative that this Association and its members continue to work with the judiciary on many ongoing projects: outreach efforts to the community, judicial performance review, bench-bar relations, pro se issues, and, most importantly, on educating the public about the need for an independent, accountable judiciary to securing fundamental human rights.

Massachusetts gave birth to the idea of judicial independence as a solution to an age-old political question: how does a people safeguard its liberties against incursions of government power? For 300 years the Massachusetts judiciary has served as a beacon of fairness and progress in the administration of justice. Today the judiciary faces great challenges. But we have faced, and overcome, such challenges before. We will do so now. With your help, with the continued good will of the people we serve, and with the cooperation and understanding of our co-equal branches of government, our judiciary will remain strong, and grow stronger, in service to its constitutional mission. We must not, and we will not, fail.

1. 1996 Year-End Report to the Federal Judiciary

Copyright © Margaret Hilary Marshall