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Moving Past Crisis . . . Promoting Parity:How Effective Intergovernmental

Relations Can Help Build a More Co-Equal Judicial Branch

DR.ROGER E.HARTLEY*

ABSTRACT

The crisis impacting the American judiciary is evident in budget cutsand, what some call, court-curbing legislation, which attempts to rein incourt power. Courts, however, face an especially difficult politicalconundrum. Work by James Douglas and Roger Hartley in the 2000s notedthat court needs do not command the same political salience or attentionby political officials as do agencies in the justice system like public safety,prosecution, and correction.1 In addition, norms of judicial impartiality andthe protection of judicial independence often drive what some mightconsider a passive approach to political engagement by judges and courtofficials. However, the very nature of the legislative and executiveprocesses necessitate (and reward) activeand sometimes aggressivepolitical participation to secure needed resources, to build support for

* Professor and Director, Masters of Public Affairs Program, Western Carolina University. I

would like to thank and credit Michele Stone, a former undergraduate student at the

University of Arizona, who worked with me to move this project forward. Some of the work

in this project is founded on exploratory work that is reported in her unpublished Honors

Thesis, which I directed in 2005-2006. Her work is cited throughout this paper and her ideas

added greatly to this project. I would also like to thank my graduate assistant Rebecca Duley

at Western Carolina University for her research assistance in writing this paper. Donald

Songer, Justin Wedeking, and my colleagues in the political science department of Western

Carolina University provided helpful comments.1 James W. Douglas & Roger E. Hartley, State Court Strategies and Politics During the

Appropriations Process, 21 PUB. BUDGETING & FIN. 35, 35-37 (2001) [hereinafter Douglas &

Hartley, State Court Strategies and Politics]; Roger E. Hartley, State Budget Politics and Judicial

Independence: An Emerging Crisis for the Courts and a Time to Emerge as a Political Branch, 18 CT.

MANAGER 16,16-23(2003)[hereinafter Hartley, State Budget Politics and Judicial Independence].


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legislation that might favorably impact courts, and sometimes to fight offlegislation that might harm the power of courts and the work of judges.This Article raises important questions about how courts enter the political

process and how they might do so more effectively. While aggressivepolitical action by court officials might draw a political backlash from theother branches and even demonstrate political bias, well-planned, active,and effective intergovernmental relations by courts is a necessary conditionfor moving past the present crisis in the judiciary.

INTRODUCTION

he crisis impacting the judiciary is evident in budget cuts and, whatsome have termed, court-curbing legislation.2 The speakers at the2012 New England Law Review Symposium titled Crisis in the

Judiciary noted conflicts that American state courts face in theirrelationships with the other branches of state government.3 Moreparticularly, contributors like Daniel J. Hall and Lee Suskin note theadverse policy impacts that budget cuts and poorly-designed legislationcan bring to state courts.4

The themeCrisis in the Judiciarystrongly implies that courts faceunusual problems and conflicts in their interactions at the federal, state,and local levels with executive and legislative bodies. Courts facedifficulties in their interactions with the other branches, which may be aproduct of the differing organizational structures under which todaysstate courts operate. For example, the administrative needs, strategies, andpriorities of trial court administrators and presiding judges may differ fromthe interests of court leaders at state administrative offices of the courts(AOCs).5

Cuts in budgets, policy changes by other branches that indirectly

2 See Charles Gardner Geyh, Can the Rule of Law Survive Judicial Politics?, 97 CORNELL L.

REV. 191, 248 (2012) (stating that court critics have implemented court-curbing measures,

including budget cuts).3 See New England Law Review, Crisis in the JudiciaryNew England Law Reviews Fall 2012

Symposium, ON REMAND, http://newenglrev.com/symposia/vol_47_fall_symposium/ (last

visited Apr. 8, 2013) (explaining that the New England Law Review provided a forum in which

panelists could discuss the financial problems facing the judiciary and offer creative solutions

to those problems).4 Lee Suskin & Daniel J. Hall, Responding to the CrisisReengineering Court Governance and

Structure, 47 NEW ENG.L.REV. (2013).5 See Trial Court Administration Job Descriptions, NCSC,

http://www.ncsc.org/Topics/Human-Resources/Job-Descriptions/Administrators-Trial-

Courts/Trial-Court-Administrator-Large-Jurisdiction.aspx (last visited Apr. 8, 2011)

(describing the varying duties of different court administrators).

T


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impact courts, and even outright attacks on court power are conflicts thatcome from a lack of attention to building strong external relationships.These conflicts also stem from stakeholders that often do not understand

the proper role of courts, the operational needs of courts, and the impact ofpolicy decisions and cuts on the overall efficiency of our justice system.Solutions to the many crises facing the judiciary today raise the question ofhow court leaders can head off, manage, and resolve conflicts with externalstakeholders like other government agencies, interest groups, court clients,and even other judicial organizations at different levels of government.

In this Article, I argue that courts face unique intergovernmentalrelations problems that other agencies do not face. These constraintsnecessitate more attention to, and involvement in, building institutionalsystems of effective external relations, intergovernmental relations, andeven lobbying. The judiciary faces an especially difficult conundrum. As anindependent branch, courts are expected to remain above politics, yet

they must enter the political process to obtain their resources, to fight forand against policies that might impact them, and to even repel attacks ontheir power.

This conundrum coupled with the crisis impacting court resources andother needs raise the question of how courts perform the tasks ofintergovernmental relations. How does the judiciary interact with or lobbyother branches of government? Existing research suggests that courtstraditionally behave conservatively in their lobbying behavior and usecautionby trying to not appear aggressive or outwardly politicalwhenlobbying for court needs.6 Some scholars suggest that courts should behaveconservatively as a strategy for maintaining norms of judicialindependence and court legitimacy.7 However, case study research hints atmore sophisticated strategies used by courts when widespread reforms areundertaken.8 Court officials are currently planning for improved political

6 See William Glaberson, Big Plan for Small Courts: Seeking Money to Fix Them, N.Y. TIMES,

Jan. 30, 2007, at B3 (reporting that New York courts asked for a conservative figure from the

legislature to improve the states town and village courts); Adam Liptak, Federal Judges Find

Courts Short of Money to Pay Jurors, N.Y.TIMES,Aug. 1, 2003, at A16 (stating that federal courts

hoped that Congress would tap into an emergency fund to help pay jurors after previously

passing over the courts fiscal problems).7 See Stephen B. Burbank, Judicial Independence, Judicial Accountability, and Interbranch

Relations, 95 GEO. L.J. 909, 914-15 (2007); Judith Resnik, The Programmatic Judiciary: Lobbying,

Judging, and Invalidating the Violence Against Women Act, 74 S. CAL.L.REV.269,287-90(2000).8 See Jeremy Buchman,Judicial Lobbying and the Politics of Judicial Structure: An Examination

of the Judiciary Act of 1925, 24 JUST.SYS.J.1,11-13(2003);Justin Crowe, The Forging of the Judicial

Autonomy: Political Entrepreneurship and the Reforms of William Howard Taft, 69 J. POL.73,77-80

(2007);John W. Winkle III, Interbranch Politics: The Administrative Office of U.S. Courts as Liaison,

24 JUST.SYS.J.43,50(2003)[hereinafter Winkle,Administrative Office of U.S. Courts as Liaison].


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mobilization and more effective interbranch relations at the federal leveland in the states.9

This Article draws on the findings of existing research, as well as some

initial evidence from the states of New York and Washington, to introduceintergovernmental relations strategies that may be effective for courts touse to manage the crisis. However, more research is needed. Importantresearch questions include: What resources are devoted tointergovernmental relations? What do courts lobby for and against? Whattactics and strategies are used? And, What current and past efforts haveimproved interbranch relations? I propose many state judiciariescommonly use some traditional intergovernmental-relations activities andthat these are documented in past research (e.g., use of judges and courtliaisons). There is still, however, a lot to learn. Some court systems areemploying more sophisticated strategies to lobby, such as coalitionbuilding and forging a process for legislative affairs. This behavior may be

more widespread than originally assumed.10

With more research andattention to intergovernmental relations, court leaders can create anddisseminate best practices that might help solve the puzzle of how toeffectively and vigorously argue for court needs without tarnishing normsof impartiality and harming the independence of courts.

I. Judicial Independence, Intergovernmental Relations, and the CourtsWhen discussed by court leaders and academics, the crisis in the

judiciary is often defined as the many adverse impacts of budget cutssuch as cuts to judicial salaries, staff layoffs, increasing caseloads and timesto disposition, fewer trials, and cuts to popular judicial initiatives likespecialized courts.11 Crisis can refer to well-intended legislative and

gubernatorial policy agendas with negative, unintended consequences oncourts, such as efforts to raise revenue through new court fees forimportant justice initiatives that may harm access to courts for the poor.12Of course, crisis is also popularly used to describe the employment of

9 See Adam Liptak, Judges Mix With Politics, N.Y. TIMES,Feb. 22, 2003, at B1 (stating that

courts are moving away from a neutral role and embracing politics).10 See Terry Carter, State Justices, Legislators on Panel Shared Success Stories on Tackling

Judiciary Budget Concerns, ABAJOURNAL.COM (Nov. 15, 2012, 3:02 PM),

http://www.abajournal.com/mobile/article/court_funding/ (describing the success of state

courts that have persistently lobbied their legislators).11 In Focus: Judicial Branch Budget Crisis, CAL. JUDICIAL BRANCH,

http://www.courts.ca.gov/partners/1494.htm (reporting that California courts have

experienced layoffs, cutting of programs, and longer disposition time due to the judicial crisis)

(last visited Apr. 8, 2013).12 See Carter, supra note 10.


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force by other branches to threaten or actually rein in the power of judges. 13Concerns about violations of the norms of judicial independencethroughattacks by other branches on both judges and the institutionat the federal

and state level have generated much discussion among judges, courtleaders, the bar, and academics.14 Because of legislative and executivebranch action that has been deemed, at times, hostile to the power and roleof judges and courts,15 there has been a renewed focus on the need for courtofficials to improve both intergovernmental relations and how courts lobbythe other branches.16

Lobbying, in popular culture, has become somewhat of a dirty wordthat invokes high-priced wordsmiths advocating for interest-group needswith as much political ammunition and capital as one can muster.17 Thefact that all organizations have needs that must be addressed in thepolitical process makes lobbying important. The reality is that lobbying is avery real and important activity to all government agencies, including

courts.18

Because of the negative connotations of the term, we commonly

13 See Elizabeth Dinan, More Cuts Coming for N.H. Courts,SEACOASTONLINE.COM (Dec. 21,

2010, 5:10 PM), http://www.seacoastonline.com/articles/20101221-NEWS-101229950 (reporting

that attorneys believe that the legislatures refusal to fund the courts is disgraceful and has

jeopardized cases).14 See Stephen B. Bright, Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to

Intimidate and Remove Judges from Office for Unpopular Decisions?, 72 N.Y.U. L. REV. 308, 330

(1997) (noting that governors have stated that they believe they should be able to override bad

court decisions and have urged the federal government to do the same).15 Id. at 309-10 (urging more legal professionals and students to defend judicial

independence against politicians attacks). For example, a South Dakota effort known as

J.A.I.L. 4 Judges that would have allowed citizens to bring lawsuits against judges for their

rulings. At the federal and state level, threats have been made to lower court budgets in thewake of unpopular decisions. Douglas & Hartley, State Court Strategies and Politics, supra note

1, at 37-38. Also at the federal level, Chief Justice Rehnquist commented in his 2003 and 2004

Year-End Reports on the Federal Judiciary about criticism and threats of judges based on acts

of the judiciary. Chief Justice Rehnquist called attention to the Feeney Amendment to the

PROTECT Act that established the monitoring of judges who downward depart from

sentencing guidelines, threats to impeach judges for unpopular rulings, and bills introduced

to alter the jurisdiction of courts for political reasons, and the Feeney Amendment to the

PROTECT Act that established the monitoring of judges who downwardly depart from

sentencing guidelines. Chief Justice Rehnquist also noted the need for improved

communication and consultation between Congress and the judiciary.16 See CHIEF JUSTICE WILLIAM H. REINQUIST, 2003 YEAR-END REPORT ON THE FEDERAL

JUDICIARY (2004), available at http://www.supremecourt.gov/publicinfo/year-end/2003year-

endreport.aspx [hereinafter 2003YEAR-END REPORT].17 Anita S. Krishnakumar, Towards a Madisonian, Interest-Group-Based, Approach to Lobbying

Regulation, 58 ALA.L.REV.513,514(2007).18 See John W. Winkle, Judges Before Congress: Reform Politics and Individual Freedom, 22

POLITY 443,453(1990)[hereinafter Winkle,Judges Before Congress].


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see lobbying called other less objectionable terms likeintergovernmental relations or intergovernmental affairs. The fact isthat courts do lobby, but relatively little is known about how it is done

because of a lack of research and, arguably, because few talk about it much.Because of norms of impartiality and legal constraints faced by judges inthe political arena, the subject of lobbying may rarely reach publicdiscussion or debate.

The subject of how courts lobby is of critical importance to the day-to-day functions of the branch and runs much deeper than the need to repelattacks on the judiciary. Past research clearly demonstrates that judges andtheir intermediaries routinely work through non-judicial means in thepolitical arena to influence policymakers.19 Court officials regularly work inthe political arena with other governmental organizations to lobby forresources (e.g., budget requests and new facilities), to comment onlegislation that might have beneficial or harmful effects on the branch, and

to promote legal and administrative reforms that might improve thejudicial branch (e.g., unification of courts).20 However, judicial systems inthe United States face a conundrum of sorts that some argue has hindered

19 See, e.g., Ellen Baar & Carl Baar, Judges as Middlemen?, 2 JUST. SYS.J. 210, 210 (1977)

(employing a network-analysis system to explore the relationships between the states judges

and legislatures); Crowe, supra note 8, at73-74;James W. Douglas & Roger E. Hartley, State

Court Budgeting and Judicial Independence: Clues from Oklahoma and Virginia, 33 ADMIN.&SOCY

54, 68-72 (2001) [hereinafter Douglas & Hartley, Clues from Oklahoma and Virginia];Douglas &

Hartley, State Court Strategies and Politics, supra note 1,at35-37;Hartley, State Budget Politics

and Judicial Independence, supra note 1,at54-78; Resnick, supra note 7, at 276-78 (using Chief

Justice Rehnquists involvement in the Violence Against Women Act as indicative of the

federal judiciarys political development in the twentieth century); Russell R. Wheeler &

Robert A. Katzmann, A Primer on Interbranch Relations, 95 GEO. L.J. 1155, 1160-61 (2007)

(analyzing the five principles that define legislative influence on judicial decision making);

Winkle, Administrative Office of U.S. Courts as Liaison, supra note 8, at 43-44 (detailing a

systematic study on the contemporary role of the Administrative Offices role in judicial

lobbying); Winkle, Judges Before Congress, supra note 18, at 443-45, 453;John W. Winkle III,

Judges as Lobbyists: Habeas Corpus Reform in the 1940s, 68JUDICATURE 263, 263-64 (1985)

[hereinafter Winkle, Judges as Lobbyists](noting continued practice of judicial lobbying of the

legislature in the absence of clear, constitutional authority); John W. Winkle III & Robert H.

Oswald, The Role of Trial Judges in State Court Reform: The Case of Mississippi, 91 JUDICATURE

288, 288-89 (2008) [hereinafter Winkle & Oswald, The Role of Trial Judges] (recognizing the

importance of gaining the legal communitys support through lobbying in judicial reform).20 2003YEAR-END REPORT, supra note 16 (criticizing the legislatures failure to consult the

judiciary before enacting the PROTECT Act); Crowe, supra note 8, at 73-74 (examining how

the political activity of Chief Justice William Howard Taft resulted in significant judicial

reform that changed the character of the Supreme Court); James W. Douglas & Roger E.

Hartley, Making the Case for Court Funding: The Important Role of Lobbying, 43 JUDGESJ.35,36

(2004)[hereinafter Douglas & Hartley,Making the Case for Court Funding].


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their efforts in the political process.21 As an independent branch, judges areexpected to remain above politics and behave that way, yet they mustalso enter the political process to secure and protect their interests.22 There

are differences of opinion among scholars about how courts should behavegiven the role of impartiality and the need for judicial independence. 23 Onone hand, some worry that efforts to behave more politically andaggressively could lead them to be perceived as just another interestgroup and thereby invite more demand for accountability from courts.24Interestingly, the demonstration of how courts are accountable to theother branches and the public has become the subject of much discussion incourt policy circles.25 Demonstrating that courts are accountable mayhave even recently become a strategy of sorts to convince externalstakeholders that courts are responsible stewards of resources and powerand deserving of more resources and more independence.26

However, others suggest that courts may be perceived as essentially

just another interest group when they enter the political process. Courtsmust enter the political system to get what they need and, as a result, thosewho work with them expect similar political behavior as the others theyencounter. One study of intergovernmental lobbying (that focused on localgovernments before legislatures, not courts) notes that there is evidencethat intergovernmental groups are viewed similarly to other interestgroups in the policymaking arena.27 For instance, Ciglers 1994 study ofdirectors of county associations found courts were perceived much likeother interest groups because they behave much like other interests (e.g.,lobbying aggressively and forming coalitions with other groups).28 Other

21 See Douglas & Hartley, State Court Strategies and Politics, supra note 1, at35-37;Douglas &

Hartley,Making the Case for Court Funding, supra note 20, at 35-37; Hartley, State Budget Politicsand Judicial Independence, supra note 1, at16-23.

22 See Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 35.

23 Compareid. (arguing for increased lobbying and participation in the political process on

the part of the judiciary), with Resnick, supra note 19, at 289-90 (cautioning the judiciary

against entering the political realm because of the risk that it will lose its impartial and

independent character).

24 See Burbank, supra note 7, at921-22;Resnick, supra note 19, at 289-90.

25 News Release, Lorri Montgomery, Dir. of Commcns, Natl Ctr. for State Courts,

Surviving the Economic Tsunami: How Fresh Ideas and New Solutions Are Replacing Business as

Usual (Nov. 15, 2012), available at http://www.ncsc.org/Newsroom/News-

Releases/2012/Surviving-the-Economic-Tsunami.aspx (highlighting a recent conference where

judicial accountability was discussed).

26 See id.27 Patricia K. Freeman & Anthony J. Nownes, Intergovernmental Lobbying in the States, 27

SOUTHEASTERN POL.REV.619,620(1999).

28 Beverly A. Cigler, The County-State Connection: A National Study of Associations of


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research on the state budget process suggests that courts are expected tobehave politically like other agentslegislators and executive branchofficialsencountered regularly in the process.29 If courts dont behave this

way, will they shortchange themselves in the political process? Might theybe viewed as an interest group with less capability, that has not masteredthe process, and that has little to exchange with legislators (e.g., politicalsalience, pork for districts, etc.)? The issue of intergovernmental relationsis clearly salient, has invited much careful thought, and needs moreattention to resolve some of these important debates about how courtsshould do intergovernmental-relations work. Either way, however,intergovernmental relations is of critical importance to the day-to-dayfunctions of the judiciary.

Intergovernmental relations are indeed a salient topic to those whowork inside, and with, courts. Improving communications is repeatedlymentioned as a need of policy focus in the Chief Justices Year-End Report

on the Federal Judiciary that is presented to Congress.30

In addition, JusticeSandra Day OConnor has spent much of her retirement writing andspeaking about the importance of judicial independence and the need forimproved relations between the courts and the other branches ofgovernment.31 There is some evidence that these calls have been heard.Improvement of intergovernmental relations has been the subject ofjudicial conferences, a recent law school symposium, and of judicial andcourt association commissions.32 For example, improving

Counties, 54 PUB.ADMIN.REV.3,5(1994).

29 See Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 35-37; seealso

Douglas & Hartley,Making the Case for Court Funding, supra note 20, at35-37.

30 Chief Justice Roberts 2007 Year-End Report on the Federal Judiciary specificallyaddressed improving intergovernmental relations in general and specific subjects, such as

pay. 2007 YEAR-END REPORT ON THE FEDERAL JUDICIARY 4-6 (2008), available at

http://www.supremecourt.gov/publicinfo/year-end/year-endreports.aspx. Chief Justice

William Rehnquists 2003 and 2004 reports focused specific attention on recent policy actions

affecting the judicial branch and congressional bypassing of norms to consult with the

judiciary on items that might impact the courts. 2003YEAR-END REPORT, supra note 16; 2004

YEAR-END REPORT ON THE FEDERAL JUDICIARY (2005), available at

http://www.supremecourt.gov/publicinfo/year-end/year-endreports.aspx. Chief Justice

Rehnquist called specifically for improved consultation between Congress and the Judiciary

on the impact of bills. 2003YEAR-END REPORT, supra note 16.31 See, e.g., Sandra Day OConnor, Fair and Independent Courts: Remarks by Justice O Connor,

95 GEO.L.J.897,897-98(2007);Sandra Day OConnor, How to Save Our Courts, PARADE (Feb. 27,

2008), available at http://lists.ajs.org/pipermail/ajs_board/2008-February/000722.html; Sandra

Day OConnor Cites the State Budget Crises as Most Pressing Problem Confronting State Courts,

ABANOW.ORG (May 8, 2009), http://abanow.org/2009/05/sandra-day-oconnor-cites-state-

budget-crises-as-most-pressing-problem-confronting-state-courts/.32 See, e.g., American Bar Association, ABA Presidential SummitJustice is the Business of


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intergovernmental relations was the primary subject of a national policysummit, Justice is the Business of Government: The Critical Role of Fairand Impartial State Courts, sponsored by the American Bar Associations

Presidential Commission on Fair and Impartial State Courts and theNational Center for State Courts.33

Judicial lobbying has drawn the attention of court officials and the bar. . . .34 However, policy efforts to improve judicial intergovernmentalrelations could be better informed by systematic studies of how courtslobby the other branches of government: Who lobbies for courts? What dothey lobby for? And what resources do courts have to advance theirinterests? All good research is advanced by what we know from pastresearch. [T]here has been relatively little academic research on howcourts perform the task of intergovernmental relations.35 From existingresearch, we learn that courts face unusual problems and constraints asthey lobby other government organizations, and there is some additional

although limitedresearch on judicial lobbying at the federal and statelevels.36

II. Limits and Constraints on Court LobbyingIt is no secret that governments lobby other governments, even

though this is not what the people typically think of as they consider thebehavior of lobbying.37 Common conceptions of lobbying are of well-paid

Government: The Critical Role of Fair and Impartial Courts: Innovative SolutionsBriefing Paper,

ABANOW.ORG (May 10, 2009), http://www.abanow.org/2009/05/aba-presidential-summit-

justice-is-the-business-of-government-the-critical-role-of-fair-and-impartial-state-courts-6

(follow link to briefing paper under For more information); Betsy M. Adeboyejo &

Alexandra Buller, Cuts to State Courts are Focus of Symposium, ABANOW.ORG (Sept. 23, 2011),http://www.abanow.org/2011/09/cuts-to-state-court-focus-of-symposium/.

33 Edward W. Madeira, Justice is the Business of Government: State and Local Government

Branch Roles in Delivering Justice, HUMAN RIGHTS, AMERICAN BAR, . The Summit was held in

Charlotte, North Carolina from May 7 to 9, 2009. Sponsors invited court, legislative, and

executive branch representatives from each state to attend working sessions designed to

identify challenges facing state courts, and to jointly propose agendas for efforts on such

topics as improving budgets, public attitudes about the courts, and intergovernmental

relations. Id.34 Roger E. Hartley, Intergovernmental Relations and the Courts: How Does an

Independent Branch Play Politics? (2009) (unpublished manuscript), available at

http://ssrn.com/abstract=1428537 [hereinafter Hartley, Intergovernmental Relations and the

Courts].35 Id.36 See Charles Gardner Geyh, Paradise Lost, Paradigm Found: Redefining the Judiciarys

Imperiled Role in Congress, 71 N.Y.U. L. REV. 1165, 1197-98, 1245 (1996); Hartley,

Intergovernmental Relations and the Courts, supra note 35.37 Hartley, Intergovernmental Relations and the Courts, supra note 35.


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lobbyists hired by interest groups that work the halls of legislatures toargue for and against legislation. As a result, most scholarship on lobbyingfocuses on how interest groups enter the political process to impact

legislation, the formulation of regulations, and the implementation ofpolicy.38 By far, most scholarship on lobbying related to the courts isdirected at how interest groups seek to impact litigation,39 court decisions,40and decisions by Congress on judicial nominations.41

Intergovernmental lobbying has flown under the radar to somedegree, even in [political science] literature on interest groups.42 Much ofthe work on intergovernmental relations can be categorized as efforts tostudy the problems of federalism and how branches of governments sharepowers and interact to create policy opportunities over time.43 The mannerin which intergovernmental lobbying occurs is shown by specific studies.44For example, [s]tudies that focus on intergovernmental lobbying inWashington, D.C. include Haiders (1974) classic work as well as more

recent work by Cammisa (1995).45

Some focus on how states lobby thefederal government46 or how local government organizations work toinfluence states.47

Unlike with other branches, efforts undertaken by the judiciary to

38 See, e.g., Preface to INTEREST GROUP POLITICS, atv (Allan J. Cigler & Burdett A. Loomis

eds., 1983); JEFFREY M.BERRY,THE INTEREST GROUP SOCIETY 6-8 (1984).

39 See, e.g., MICHAEL W. MCCANN, RIGHTS AT WORK: PAY EQUALITY REFORM AND THE

POLITICS OF LEGAL MOBILIZATION 48 (1994); Stephen L. Wasby, How Planned is Planned

Litigation?, 9AM.B.FOUND.RES.J.83, 106-07 (1984).

40 See generally Kevin T. McGuire & Gregory A. Caldeira, Lawyers, Organized Interests, and

the Law of Obscenity: Agenda Setting in the Supreme Court, 87 AM.POL.SCI.REV. 717, 717-19, 724(1993).

41 See, e.g., NANCY SCHERER,SCORING POINTS:POLITICIANS,POLITICAL ACTIVISTS, AND THE

LOWER FEDERAL COURT APPOINTMENT PROCESS 3-4 (2005).

42 Hartley, Intergovernmental Relations in the Courts, supra note 34.

43 See, e.g., Preface to INTERGOVERNMENTAL RELATIONS IN THE 1980S,at v (Richard H. Leach

ed. 1983).


45 Id.

46 Troy Smith, Intergovernmental Lobbying in the Twenty-First Century: Why Process Federalism

and Opportunistic Actors Create a Less Structured and Balanced Federal System, in

INTERGOVERNMENTAL MANAGEMENT FOR THE TWENTY-FIRST CENTURY 310,321-22 (Timothy J.

Conlen & Paul L. Posner eds. 2008); Troy Smith, When States Lobby 5-11(1998) (unpublished

Ph.D. dissertation, University of Albany) (on file with author).47 See, e.g., Freeman & Nownes, supra note 27, at 621; CLIVE S. THOMAS & RONALD J.

HREBENAR, GOVERNMENT AS AN INTEREST AND LOBBYING FORCE IN THE AMERICAN STATES 1

(1992).


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lobby are constrained.48 Scholarship traditionally notes that the power ofcourts and protections against intrusion on court power are rather minimalin comparison to those of the other branches.49 Burbank states it well

when he says, formal protections of federal judicial independence pale incomparison with formal powers that might be deployed to control thefederal courts and make them accountable.50 Instead, informal norms andcustoms of judicial independence have evolved and have been described asfostering equilibrium among federal courts and the other branches.51Geyhs work notes that while there are many weapons that the otherbranches can use against courts (e.g., budget power, impeachment, courtpacking), these are rarely used because norms and customs protect theindependence of courts.52 That said, in an interview following thepublication of his book, Geyh cautions that this equilibrium is fragile andin recent years even more so given the recent political environment of on-going campaigns against judicial activism and attacks on judges and their

decisions by Congress, pundits, and evangelical conservatives.53

Asnoted earlier, other scholars argue that courts should be very careful inhow they communicate with the other branches given this delicatebalance.54

Just how open or conservative court systems should be when lobbyingthe other branches remains up for debate and needs more support fromscholarship. Still, the limitations, pressures, and issues courts face whendeciding how to proceed are very realand a rather conservativeapproach to behaving politically seems to exist.55 First, court officials mayfear behaving in openly political ways because it might tarnish the imageof the bench as apolitical, fair, and impartial.56 Norms (and even JudicialCanons) suggest that decisions should be made without external pressuresor the appearance thereof.57 This isolates the judiciary and some have


49 Id. (citing Burbank, supra note 7, at 913).

50 Burbank, supra note 7, at 913.

51 See CHARLES GARDNER GEYH,WHEN COURTS &CONGRESS COLLIDE:THE STRUGGLE FOR

CONTROL OF AMERICASJUDICIAL SYSTEM 52, 111, 253-54 (2006).

52 See id. at 51.

53 Congressional Control Over the Courts? History Says No, But it Could Happen, IND.

UNIVERSITY BLOOMINGTON (Apr. 6, 2006),

http://info.law.indiana.edu/news/page/normal/3254.html.

54 See Burbank, supra note 7, at 925-27; Resnik, supra note 7, at 292.

55 See Mark W. Cannon, Innovation in the Administration of Justice, 1969-1981: An Overview,10 POL.STUD.J. 668, 670-73 (1982).

56

57 See GEYH, supra note 52, at 234-35.


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suggested that this hesitancy to lobby conceals real judicial administrationproblems from the public and the other branches.58 The suggestion thatcourt officials traditionally behave conservatively in their political capacity

is supported by some research.59

For instance, Douglas and Hartleys workon court budgeting found that court officials rarely hired the services ofprofessional lobbyists as some agencies do; rarely built coalitions orpartnered with other agencies; typically justified their budgets well; andbehaved less acquisitively than other agencies.60 Those surveyed in theother branches tended to rate the effectiveness of court budget strategieslower than the court officials themselves did.61 Cannon also notes thereticence of judges to lobby the other branches, but discusses policyagendas by Chief Justice Warren Burger to improve intergovernmentalrelations.62

Second, state and federal canons of judicial conduct provideboundaries for the political behavior of judges.63 Some of the boundaries

that Smith notes include: prohibitions against the use of appropriatedfunds to lobby Congress or influence legislation; oaths that jurists will nottestify before Congress or discuss policy with other branches, unless thepolicy matter directly affects judicial administration; and worries abouttheir public image.64 Political behavior, then, is generally discouraged andtraditionally limited to issues related to the administration of justice. Thereis also a lot of political space provided for judges to lobby formally andinformally when considering the breadth of what constitutes impacts onjudicial administration.65 In fact, the United States Code permits judges touse proper official channels to communicate requests to Congress.66 Inaddition, Winkle notes that Canon 4 of the Code of Judicial Conduct allowsjudges to essentially lobby as long as they aim to improve the law, thelegal system and the administration of justice.67 Distinctions, though, areoften drawn between representing the institution politically and judges

58 See Mark W. Cannon & Warren I. Cikins, Interbranch Cooperation in Improving the

Administration of Justice: A Major Innovation, 38 WASH.&LEE L.REV. 1, 4 (1981).59 Cannon, 1982 ; see Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 46.60 See Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 56.61 Id. at 43.62 ILL Cannon.63 See,e.g., CODE OFJUDICIAL CONDUCT Canon 4(B) (1983).64 CHRISTOPHER E. SMITH, JUDICIAL SELF-INTEREST: FEDERAL JUDGES AND COURT

ADMINISTRATION 19 (1995) (quoting 18 U.S.C. 1913 (2002)).

65 See id. at 20.66 18 U.S.C. 1913; Winkle,Administrative Office of the U.S. Courts as Liaison, supra note 8, at

43n.2.67 Winkle,Administrative Office of the U.S. Courts as Liaison, supra note 8, at 43 n.2.


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lobbying as individuals for change.68 Resnik provides an excellentdiscussion of the difference between judges speaking as individuals andspeaking as the institution.69

Last, there are other problems regarding intergovernmental relationsfacing courts that emanate, in part, from those above. The judiciary isadversely affected by the lack of political saliency that issues of judicialadministration have with the public.70 For the most part, many of the issuesfacing courts are viewed as less significant than public problems, such aseducation and transportation. When criminal-justice issues are at theforefront, concerns of the judiciary may be overshadowed by morepolitically-salient government functions such as law enforcement,corrections, and prosecution.

Another related issue is that courts have less political clout to offer theother branches in comparison with other agencies fighting for attentionand resources.71 Courts lack the ability to provide political pork to

districts and thus lack political currency to trade with legislators innegotiations or when making policy deals.

Another issue is that, unlike the heads of public agencies, some judgeslack managerial, political, and policy backgrounds.72 Fewer judicial leadershave educational backgrounds, such as a Masters of Public Administrationor Masters of Business Administration, than do other leaders in publicservice.73 Law schools for the most part do not provide this type ofeducational background.74 Some judicial leaders may have obtainedpolitical leadership experience from having served in public office, or suchexperience may have been avoided until ascent to a leadership position.The background necessary to negotiate the political process effectively maybe left to court administrators who lack some of the power and respect

afforded judges inside and outside of court organizations.75

Finally, there is the issue of turnover in judicial leadership. Judgestypically become judges to hear and decide cases. Not only is there a lackof policy and management background among some who ascend topositions like presiding judge, chief judge, or chief justice, but there are

68 Resnik, supra note 7, at 281.69 Id. at 278-82.70 See Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 35.71 See id.72 See Stephen B. Burbank, Leaving the Bench, 1970-2009: The Choices Federal Judges Make,

What Influences Those Choices, and Their Consequences, 161 U.PA.L.REV.1,43(2012).

73 See id.74 Tina L. Stark, Thinking Like a Deal Lawyer, 54 J. LEGAL EDUC.223,232(2004).75 Robert Wessels, The Court Administrator: A Manual, NACM,

http://www.fjc.gov/public/pdf.nsf/lookup/court_admin.pdf/$file/court_admin.pdf.


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also tenure issues and sometimes a lack of interest in the positions by thosewho might be excellent at the work.76 In some jurisdictions, the position ofpresiding judge is term limited, while in others, the position may be

rotated among members of the bench, and while in yet others, the positionmay go to the most senior member of the court. 77 Some may view it astheir time to serve and exit as quickly as possible. In the world ofintergovernmental relations, long-term, stable relationships are extremelyimportant. Instituting longer tenures for judicial leadership roles may leadto more effective intergovernmental relations.

Even with the advances in court management over the past forty years,courts still may lack effective policy leadership, adequate resources tospend on intergovernmental-relations work, political capital, and thepolitical saliency to command the same kind of attention of law makersand funders. Other government agencies that are competing for politicalattention may have advantages over the judiciary.78

III. An Overview of Research on Court Lobbying Efforts andStrategies

Despite the limitations and constraints placed on political behavior ofcourts, there are examples reported in research of effectiveintergovernmental relations throughout history.79 In the past, the judiciaryand barsometimes repeatedlyhave set forth agendas to improveinterbranch relations.80 The previously discussed limitations on court

76 SeeJohn M. Greacen, An Administrators Perspective on Judicial Leadership, 40 JUDGESJ.41,

41(2001).77 Id.

78 Roger E. Hartley & James W. Douglas, Budgeting for State Courts: The Perceptions of KeyOfficials Regarding the Determinants of Budget Success, 24 JUST.SYS.J.251,251(2003)[hereinafter

Hartley & Douglas, Budgeting for State Courts].79 See, e.g., Carl Baar, The Scope and Limits of Court Reform, 5 JUST. SYS.J. 274, 276 (1979)

[hereinafter Baar, The Scope and Limits of Court Reform]; Cannon, supra note 56, at 669-78;

Crowe, supra note 8, at 73-75; Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288;

Carl Baar, When Judges Lobby: Congress and Court Administration18-19,33-34 (Aug. 1969)

(unpublished Ph.D. dissertation, University of Chicago) (on file with University of Chicago)

[hereinafter Baar, When Judges Lobby].80 See NATL CTR. FOR STATE COURTS &PEW CTR. ON THE STATES,THE ROLE OF STATE COURT

LEADERS IN SUPPORTING PUBLIC POLICY THAT AFFECTS THE ADMINISTRATION OF JUSTICE, A

CONF. REP. & PROFILE OF INTER-BRANCH INITIATIVES 5 (2008), available at

http://ncsc.contentdm.oclc.org/cdm/ref/collection/ctadmin/id/1865; LINDA K. RIDGE ET AL.,

LEGISLATIVEJUDICIAL RELATIONS: SEEKING A NEW PARTNERSHIP: A GUIDEBOOK FOR

LEGISLATIVEJUDICIAL RELATIONS 9-10 (1992); Am. Bar Assn & Natl Ctr. for State Courts, 300

State Officials Leave State Courts Summit with Plans for Action to Improve Relations, Protect Court

Funding, DIV. MEDIA REL. & COMM. SERVS. (2009), available at

http://www.abanow.org/2009/05/300-state-officials-leave-state-courts-summit-with-plans-for-


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intergovernmental relations led to calls by scholars for courts to changelobbying behavior by adopting different political tactics and increasingpolitical activity.81 For example, studies of intergovernmental relations that

focus on other government agencies suggest that courts could improve thesaliency of their issues by more effectively building coalitions andpartnering with other organizations on lobbying efforts.82 In 2004, Douglasand Hartley called for this type of behavior and specifically noted, forexample, that the movement toward specialty and community courtsopens opportunities for new coalitions and lobby partnerships.83

Unfortunately, while court lobbying and intergovernmental relationsare salient policy issues to those in the court community, these issues havenot received as much empirical attention by scholars. In 2003, Winkle notedthat research on judicial lobbying efforts has been a topic of low salienceon research agendas,84 and again in 2008, that research is sparse.85 Somestudies do exist, but focus primarily on what federal courts lobby for and

who interacts with Congress;86

on past lobby efforts of federal judges;87

onparticular court reform efforts like jurisdiction, court structure, and thecreation of new rights;88 or are focused more narrowly on budget politics.89

There are fewer studies at the state level. Most are primarily casestudies limited to judicial lobbying efforts in particular states,90 the scope of

action-to-improve-relations-protect-court-funding/; Cannon, supra note 56, at 673-75.81 See NATL CTR. FOR STATE COURTS & PEW CTR. ON THE STATES, supra note 81, at 3-5;

RIDGE, supra note 81, at iii-iv; Am. Bar Assn and Natl Ctr. for State Courts, supra note 81;

Cannon, supra note 56, at 669-78.82 ROBERT A.KATZMANN,COURTS AND CONGRESS 10-11, 36-37 (Brookings Institution Press

1997) [hereinafter KATZMANN,COURTS AND CONGRESS]; Robert A. Katzmann,The Continuing

Challenge, inJUDGES AND LEGISLATORS:TOWARD INSTITUTIONAL COMITY 180, 185-90 (Robert A.Katzmann ed., 1988) [hereinafter Katzmann, The Continuing Challenge]; Douglas & Hartley,

Making the Case for Court Funding, supra note 20, at 35-36; Geyh, supra note 36, at 1235-36;

Hartley, State Budget Politics and Judicial Independence, supra note 1, at 16-23.83 Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 37.84 Winkle,Administrative Office of U.S. Courts as Liaison, supra note 8, at 43.85 Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288.86 Wheeler & Katzmann, supra note 19, at 1155, 1157, 1172; Winkle, Administrative Office of

U.S. Courts as Liaison, supra note 8, at 44, 60-61.87 See Baar, When Judges Lobby, supra note 80, at 18-19; Crowe, supra note 8, at 78, 80.88 DEBORAHJ.BARROW &THOMAS G. WALKER,ACOURT DIVIDED 258, 262 (5th ed. 1988);

Buchman, supra note 8, at 1-4; Crowe, supra note 8, at 73-75; Winkle, Judges Before Congress,

supra note 18, at 443-44; Winkle & Oswald, The Role of Trial Judges, supra note 19, at 263.89 BARROW & WALKER, supra note 90, at 258, 262; Buchman, supra note 8, at 1-4; Crowe,

supra note 8, at 73-75; Winkle, Judges as Lobbyists, supra note 19, at 263; Winkle, Judges Before

Congress, supra note 18, at 443-44.90 Thomas G. Walker & Deborah J. Barrow, Funding the Federal Judiciary: The Congressional

Connection, 69 JUDICATURE 43, 43-44 (1985); Dean L. Yarwood & Bradley C. Canon, On the


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efforts at court reform,91 or are limited to budget politics.92 Multi-statestudies of judicial lobbying are very rare and are either outdated 93 or areexploratory, unpublished efforts. Baar and Baars 1976-1977 work is the

most systematic of these efforts and most relevant to this study.94

The remainder of work is primarily normative in nature, focusing on

judicial participation in intergovernmental relations. This research typicallydefines the scope of the problem of intergovernmental relations, identifiesissues that courts focus their lobby efforts on, and addresses concernsabout how to approach intergovernmental relations and how it might bedone more effectively. For example, there was a symposium in a 2007 issueof Georgetown Law Journal that compiled essays born of a Georgetownconference entitled, Fair and Independent Courts: A Conference on theState of the Judiciary.95 Additional information is also found in the workof judicial commissions and summits that identify best practices used bycourts and set forth strategies, tactics, and agendas for political change.96

These exist in the archival form of policy documents, white papers, andreports.

A review of past research points to the need for more study of how courtsperform the tasks of intergovernmental relations. Work at the federal levelfocuses primarily on the behavior of judges and the role of the LegislativeAffairs Office of the Administrative Office of the United States Courts.97 AsWinkle notes, we need to examine the effectiveness of lobbying strategiesfrom the standpoints of Congress and executive agencies.98 In other words,how do Congressional members and staff view courts and judges wholobby, and how do their tactics and strategies compare with those of otheragencies?

There is a particular need, however, for more systematic and

Supreme Courts Annual Trek to the Capitol,63 JUDICATURE 322, 322 (1980).91 FORREST TALBOTT, INTERGOVERNMENTAL RELATIONS AND THE COURTS 137-42 (William

Anderson ed., 1950); Winkle & Oswald, supra note 19, at 288-89.92 Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 35-37; Douglas &

Hartley, Clues from Oklahoma and Virginia, supra note 19, at 54-78; James W. Douglas & Roger

E. Hartley, The Politics of Court Budgeting in the States: Is Judicial Independence Threatened?, 63

PUB. ADMIN. REV. 441, 441-42 (2003) [hereinafter Douglas & Hartley, The Politics of Court

Budgeting in the States]; Hartley & Douglas, Budgeting for State Courts, supra note 79, at 251, 260.93 Baar & Baar, supra note 19, at 210-11.94 See generallyid. at 224-25.95 Judith Areen, Fair and Independent Courts: A Conference on the State of the Judiciary, 95 GEO.

L.J. 895, 895 (2007) (introducing the Georgetown Law Journal symposium issue).

96 Seeid. at 1175.97 See Office of Legislative Affairs: About the Office, THE U.S. DEPT OF JUSTICE,

http://www.justice.gov/ola/about-ola.html (last modified Aug. 2011).98 See Winkle,Administrative Office of U.S. Courts as Liaison, supra note 8, at 60.


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comparative state court studies.99 As the next section demonstrates, pastresearch elucidates important avenues that court leaders may consider forimproving intergovernmental relations. It also points us to important

theoretical considerations and propositions for future research.

IV.What Does Research Tell Court Leaders?As noted throughout this Article, there are good sources on court

lobbying and politics that might impact court budgets.100 An in-depth lookat the research reveals important points for court leaders to consider asthey work toward improving intergovernmental relations and planlobbying efforts. In addition to surveying past research, I provide somevery preliminary evidence from New York and Washington on how theirrespective judiciaries built institutions that helped them plan and lobbymore effectively. In each of the highlighted areas, there is a need for moreresearch and consideration of the differences among states, levels of courts,

and differences in international settings. These points, I hope, will help ussteer this important conversation in some useful way toward betterintergovernmental relations for the judiciary and less crisis in the future.

A. Funding SourcesState Versus Local and the Mix of Funds

One important consideration for intergovernmental relations is theaudience that you shouldor mustaddress. In the case of budgetpolitics, there have long been arguments about court consolidation thatinvolve the idea of shifting local funding of courts to the state.101 A greatsource on this debate, and study of this issue, is a 2008 report by Carlson,Harrison, and Hudzik, funded by the National Institute of Justice.102Reformers have argued that shifting to statewide-funding sources might

improve overall funding for the state courts.103 Centralization would allowcourts to speak with one voice in their lobby efforts, look more salient tolegislators, and improve funding and efficiency of managing budgets.

Another important consideration was that state funding mightimprove equity in funding across counties. A comparative study of Florida,

99 See Baar & Baar, supra note 19, at 210.100 See supra Part III.101 See, e.g., STATE BAR OF MICHIGAN JUDICIAL CROSSROADS TASK FORCE, REPORT OF THE

COURT STRUCTURE AND RESOURCES COMMITTEE (2010) (citing findings and recommendations,

including and bearing particular relevance here, Findings 2, 4, 7, 10 & Recommendation III).102 ALAN CARLSON ET AL., ADEQUATE,STABLE,EQUITABLE, AND RESPONSIBLE TRIAL COURT

FUNDING:REFRAMING THE STATE VS.LOCAL DEBATE, at ii (2008).103 See John E. Thies, Why Adequate Court Funding Continues to Be an ISBA Priority, 100 ILL.

B.J. 572, 572 (2012), available at

http://www.isba.org/ibj/2012/11/whyadequatecourtfundingcontinuestob.


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New Jersey, and Washington found that there were no apparentadvantages or differences of state funding over local funding in outcome.104While the report highlighted other important considerations for the shift to

state funding (like improving equity across trial courts), it suggests thatcourts were not better funded overall by states than localities.105

There are good political reasons why differences in state versus localfunding may not make much of a difference. In State Court Strategies andPolitics During the Appropriations Process, Douglas and Hartley suggest thatpolitics exists at every level of government.106 Moving from local to statefunding moves courts to a larger pool of resources, but it also places all ofcourts eggs in one basket. Assumptions of better funding at differentlevels of government may overlook important political considerations ofhow to better interact with and persuade those whom you are lobbying.Such considerations include: What resources are devoted to lobbying?How do courts plan and implement intergovernmental-relations work?

And, What strategies are employed? These are all important considerationsapart from the place the lobbying is performed. The state versus localargument assumes that courts will do better at the state level than theywould with local officials whom they know well and have interacted withover many years. The debate also raises assumptions that there will befunding at the state level and support for courts in the legislature. As weare well aware, states took enormous financial hits in the great recession,and balanced-budget laws have made cuts a popular choice over taxincreases with many state leaders.107 Another interesting consideration iswhether state legislators and governors adequately understand the needsof courts.108 Research indicates that there are fewer attorney-members ofstate legislatures than at any time in our countrys history. 109 In the 2000s,there was a time in Arizona where the Senate Judiciary Committee did nothave a single attorney-member.110 With fewer attorneys in statelegislatures, effective communication of court needs is of even greaterimport and becomes a more difficult task.

However, the mix of funding sources may also be important. Some

104 CARLSON ET AL.,supra note 103, at 128.105 Id.106 See Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 54.107 Michael L. Buenger, The Challenge of Funding State Courts in Tough Fiscal Times, 41 CT.

REV.J.AM.JUDGES ASSN 14, 14 (2004).108 See Janet Stidman Eveleth, Lawyer Legislators Vanishing from Legislative Landscape, 41 MD.

B.J. 62, 63 (2008).109 Id.110 Roger E. Hartley, Research Notes, Membership of the Arizona Senate Judiciary

Committee (Jan. 22, 2013) (on file with author).


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suggest that a healthy, diversified mix of funds from local, state, andfederal sources (including the use of grants, fees, and fines) may be a morestable revenue model in the long term versus receipt of funds from a single

or few providers. Think of this like a future retiree would a diversifiedinvestment portfolio: if one source becomes less reliable, another sourcemight fill the gap. However, a mix of funds means the needs for effectivemanagement and administration are extremely important. A court willneed the administrative capacity to manage the funding sources effectivelywith high quality budget and finance managers. In addition, fundingsources like grants can lead to mission creep or expansion of servicebeyond that of the core. In a 2004 study of drug courts, Douglas andHartley noted that chasing grants might spread an organization too thinand lead to crisis if the grants run out and cannot be replaced with otherfunding sources.111 This was a problem for some drug courts that receivedvery generous start-up grants from the federal government only to struggle

hard to find local or state funding when such grants ran out.112

A mix offunding also makes necessary the persuading of, and answering to,multiple masters for funding. In this way, power and control over courtoperations can creep away from court leaders.

The bottom line is that shifting the funding source or diversifying themix of funds may not matter as much as the effort placed at improving andcreating effective lobbying institutions. The shift from local to state fundingarguably makes lobbying capacity and skill even more critical than beforebecause all state trial courts are in the same strong or weak boat.

B. Lobby Strategy and Tactics

Past research by Douglas and Hartley in the 2000s focused on

strategies courts used to obtain their budgets.113

This research was limitedinsofar as it was done at the state level and made use of surveys and in-depth interviews of court budget officers and those whom the courts wentto for funding in the governors office and in state legislatures.114 Theseworks are also limited to how courts obtain their budgets and do not focuson strategy in other policy areas. Preliminary data from interviews in

111 James W. Douglas & Roger E. Hartley, Sustaining Drug Courts in Arizona and South

Carolina: An Experience in Hodgepodge Budgeting, 25 JUST. SYS.J. 75, 83 (2004) [hereinafter

Douglas & Hartley, Sustaining Drug Courts in Arizona and South Carolina].112 Id. at 85.113 See generally Douglas & Hartley, State Court Strategies and Politics, supra note 1, at 54

(detailing ways in which state courts can lobby for funds); Douglas & Hartley, Sustaining Drug

Courts in Arizona and South Carolina, supra note 112, at 85 (providing research and insight into

how drug courts perform and should obtain operating funds).114 SeeDouglas & Hartley, The Politics of Court Budgeting in the States, supra note 93, at 445.


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Washington and New York are presented later. Some of these findingsexamine how courts create institutional mechanisms for effectiveintergovernmental relations.

1. Lobby for Constitutional Reforms Allowing forSubmission of the Budget Directly to the Legislature:Where a State Court Budget is Submitted Matters.

We have learned that who you submit the budget to, and whoprovides it, matters. For example, in some states like Virginia, court leaderssubmit their budget to the Governors office where it could be altered andcombined into one gubernatorial proposal.115 It would then be sent to thestate legislature for approval and where it could be further altered. 116 Courtleaders stated that they have the difficult task of defending their budget tothe Governor and then asking the legislature to restore any cuts. Theseprocedures resemble a two-front intergovernmental-relations battle. Other

states have instituted constitutional mandates whereby a budget must besent directly to the state legislature after preparation by the court, or that itmust be sent to the governors office but cannot be altered by thegovernor.117 One important policy reform for states includes directsubmission of judicial budgets to the legislature for consideration withoutalteration. An argument can be made that anindependent court should not be forced to behave like any other stateagency by submitting their budget request to the executive branch. Yet, weknow much less about how trial courts negotiate the budget process at thelocal level. More research is needed as some state courts are fundedprimarily by local governments.

2. Lobby Against Legislative Adoption of Restrictive LineItems.

Another important consideration that was mentioned at the Crisis inthe Judiciary Symposium was control over court spending once thebudget is allocated.118 In some states, legislatures impose restrictive lineitems that mandate or limit how budget money is spent.119 Some arguethat independent courts should have more freedom to receive a budget in alump sum and spend the funds as needed or with limited restrictions. Thismay also allow for better management and implementation of budgets bythose who know more about how the money can be best spent. Of course,

115 Douglas & Hartley, Clues from Oklahoma and Virginia, supra note 19, at67-68.

116 Id.117 SeeDouglas & Hartley, The Politics of Court Budgeting in the States, supra note 93, at 452.118 See Hartley & Douglas, Budgeting for State Courts, supra note 79, at 253-60.119 SeeDouglas & Hartley, The Politics of Court Budgeting in the States, supra note 93, at 446.


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there are concerns about the waste of resources and the impact of the fundsspent. Courts need to justify the budgets each year with good evidence ofthe impact of the funds that were budgeted and spent.

3. Important Judicial Strategies to Obtain FundingThe series of papers noted in this section also provide examples of

strategies used by courts that were effective when seeking funds. This datawas gathered from a fifty state survey of court leaders and budget officialsfrom the executive and legislative branches of state governments. Weasked each of the three to rate a series of strategies used by courts to obtainfunding and compared the responses.120 Some of the findings and highestrated strategies involved effective communication of court needs: properlyjustifying budget requests and submitting reasonable requests.121 Thesestrategies gave funders confidence that courts needed what they asked forand that courts used these funds effectively. However, these tactics also

undersold court needs. Douglas and Hartley found that some statelegislatures gave courts more than they asked for.122 While on the surfacethis seems like a wonderful development, negotiation theory suggestsotherwise. Where one receives more than he or she requests, negotiationtheory suggests this individual could have received even more with alarger, properly justified request. As it turns out, those who asked for morethan what they needed were able to expand their budgets from their base-request over time. The bottom line here is that budget politics is anegotiation and like other agencies, courts should behave acquisitively.They should request more than what they need and justify those additionalrequests. After cuts, courts are left with more than they would havereceived by a conservative request.

4. R.E.S.P.E.C.T.Douglas and Hartley also found that where the governor and

legislature respect the judiciary, more weight was given to judicialrequests.123 But how is this respect earned? Of the survey respondents,playing the judicial independence card was not highly rated. Theargument that courts somehow deserve funding because they are anindependent and separate branch was more highly rated by court officialsthan their audience.124 The extent to which lawyers served in the legislature

120 See, e.g., id. at 445-51; Hartley & Douglas, Budgeting for State Courts, supra note 79, at 253-

60.

121 Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 36.122 Id.123 Id.124 See Hartley & Douglas, Budgeting for State Courts, supra note 79, at 257-58.


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improved legitimacy of judicial requests. Other strategies to build trust andrespect of the judiciary were also rated well by respondents. Theseincluded making use of personal contacts with legislators, informal

lobbying of legislators, and using the chief justice to lobby the governor orkey legislators. Direct lobbying by a state court administrator was alsorated moderately high. Other strategies that were important, but not ashighly rated, included appearing at legislative hearings, lobbying ofindividual legislators by lower court judges, and mobilization of politicalsupporters.

The mobilization of political supporters is worth mentioning further. Ifcourts, by themselves, do not look salient or important to legislators, thenbuilding coalitions with others might improve how legislators view courtneeds. As it stands, courts cannot provide much political bang for thebuck for legislators who are interested in re-election. When courts arejoined by other important constituents, including: prosecution; defense;

family advocacy groups; corrections; probation; and the treatmentcommunity, the chance for a legislator to broaden support expands.Partnerships draw attention to the importance of an issue. By analogy,when the Department of Transportation lobbies for more road buildingfunds, it is often supported by road builders, asphalt makers, and carbuildersall powerful constituents.125 One example of how courts mightaccomplish an effective coalition is through specialized treatment courts,such as drug courts. Drug courts expand the reach of the judiciary tocommunity interest groups, including: the drug treatment community;probation; prosecutors and public defenders; the medical community;education providers; and other government agencies that provide wrap-around services, like job skills or housing.126 Drug courts expand the reachof the judiciary into the community and thereby expand court networks.On a case-by-case basis, these partners could be called on for support oflegislative efforts and even funding.127

Interestingly, Douglas and Hartley found very limited use ofpartnerships and allies by courts in the budget process.128 Of the fewrespondents that had recalled coalitions and allies lobbying for courts, thebar and judges associations were most common.129 Use of outside allies was

125 See, e.g., Matthew Mosk, Toyota Gives $100K to Democratic, Republican Political Groups,

ABCNEWS (Feb. 9, 2010), http://www.abcnews.go.com/blotter/runawayToyotas/Toyota-100K-

democratic-republican-political-groups/story?id=9786215 (reporting that Toyota spent more

than $5 million on lobbying efforts in 2009).

126 See Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 76.127 Id. at 37.128 Douglas & Hartley, Clues from Oklahoma and Virginia, supra note 19,at71.129 Id. at 71.


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2013 563

an important strategy in both Washington and New Yorksintergovernmental-relations plans.130

Therefore, maintaining informal contacts with local legislators and

capitalizing on personal relationships make a difference. Finding creativestrategies to forge relationships that are ongoing and stable will improvecommunication and build respect for the judicial branch. As noted earlier,one of the weaknesses from which the courts suffer in theirintergovernmental-relations efforts is a lack of political salience tolawmakers and the public. These forms of persuasion and others mightbuild salience. The use of allies to lobby for courts and the building of long-lasting coalitions can increase political salience of judicial needs. Inaddition to the example of drug courts, coalition partners might includepopular government groups like the League of Women Voters, businessgroups, non-profits who interact with courts or regularly serve courtclients, and treatment providers for substance abuse and mental health.131

Increased attention to effective intergovernmental relations shouldinclude: use of the prestige of judges; building strong and stable policynetworks with lawmakers and allies; and building trust with strongcommunication, planning of legislative agendas, and justification ofrequests. The institutionalization of intergovernmental-relations work incourts is also very important. Courts cannot be outgunned by those withwhom they compete. Building effective court-management capacity andlobbying capacity are a necessity. We need more research on the resourcesdevoted to lobbying efforts, but one example comes from Arizona. Theentire state court system had a single intergovernmental-affairs officer whoshared an administrative assistant and had a few interns.132 Each year theywere able to pay a college student or two as an intern during the legislativesession to monitor bills as they worked to influence legislation. As of 2013,the staff increased to an intergovernmental affairs officer, another full-timestaff person to work on legislations, a full-time administrative assistant,and two interns. It would be interesting to know what a typical stateagency devotes to capacity for lobbying.

Other states, however, have done some creative institution building fortheir intergovernmental-affairs work.133 As part of my ongoing researchagenda, I have begun to study how courts do the work ofintergovernmental relations more generally. My questions include: Whatresources are devoted in states? Who do they lobby? What process or

130 Id.

131 Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 37.132 Telephone Interview with Intergovernmental Affairs Representative, Arizona State

Judiciary (Mar. 12, 2013).133 See infra notes 139-46 and accompanying text.


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planning is done? What tactics are used? Do courts make use of allies?And, What challenges do they face? In my initial work, I interviewedofficials in the states of New York and Washington as the beginning of

what I hope are several case studies that will provide evidence for a book-length project. Here, I present some limited and very preliminary findingsfrom these states that I hope will serve as examples of some of the researchpresented earlier and build some foundation for what we might be able tolearn with more research.

V. Intergovernmental-Relations Institutions in New York andWashington

A. The Example of New York: A Legislative Affairs Committee andProcess

New York State built an institutional process that was used each yearto generate and implement a legislative relations agenda.134 In New York, alegislative affairs committee was created and granted broad courtrepresentation to plan and even write bills for court needs.135 Thecommittee created an agenda of proposals in the late summer or early fallof each year, prior to the spring legislative session. Committee membersshopped these proposals to other interested groups that might be impactedpositively or negatively by the agenda item. This allowed them to getvaluable feedback on the proposal, build support and enlist partners whomight support the bill, and also identify opposition and problems with thebills. This process would provide important information that would allowthe committee to reassess proposals, refine them, or separate the wheatfrom the chaff. Some proposals were dropped if the timing did not lookgood or if significant opposition might be present.

The committee continued to meet and work during the legislativesession to track bills, attend hearings, and lobby to build support for theagenda items. When asked about assembling allies or legislativesupporters, I was told that it was very valuable and that it was done on acase-by-case basis depending on the issue and to what extent the problemreached third parties.136 They built coalitions when appropriate. Otherlobbying tactics mentioned included use of the chief justice when an issuewas close or a serious need presented itself. They used the time of the chief

134 See Interview with Marc Bloustein, First Deputy & Legislative Counsel, N.Y. Office of

Court Admin. Staff, in N.Y.C., N.Y. (Oct. 13, 2009).135 Introduction to the NYC Bar Legislative Affairs DepartmentFrequently Asked Questions,

NEW YORK CITY BAR, http://www.nycbar.org/legislative-affairs/legislative-affairs-faq (last

visited Apr. 9, 2013).136 Interview with Marc Bloustein, supra note 135.


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very judiciously. The intended message being that if the chief justiceappeared, then funders and lawmakers knew that the issue was important.Political capital was then built and spent only when necessary. Another

interesting point made about the chief justice was that he had been around,knew many legislators, and had built strong support for the bench overtime. This tends to support the idea that tenure of judicial leaders mightmatter a great deal for the fortunes of courts in intergovernmental-relationswork.137 Turnover requires introducing a new leader to lawmakers whomight need time and interaction to build trust and support, and getting thenew leader up to speed on court agenda items. New agenda items from thenew leader then, in turn, might displace other important agenda items.

B. The Example of Washington: The Justice in Jeopardy CommissionWashington State had a problem with insufficient funding of the

courts. To solve the problem from an intergovernmental-relations

perspective, Washington built a commission to lobby for court needs.138

Itwould appear that this was done intentionally to address the conundrumpresented earlier in this paperthat there is a fear that active and openlobbying by court leaders might diminish or harm the legitimacy andindependence of courts. By entering the political fray, courts and judgescan become entangled in politics that might harm perceptions ofimpartiality.139

Washingtons judiciary created the Justice in JeopardyCommission.140 The Commission was a diverse group with representationof judges, academics, important civic leaders, business leaders, populargovernment groups like the League of Women Voters, the JudgesAssociation, the State Bar, and former and present members of the state

legislature.141

The Commission was independent, could raise funds, donateto political campaigns, run ads, and more. The Commission was able tohire a professional lobbyist. It went to bat for courts politically when thelatter felt uncomfortable and the wide membership of the groups promoted

137 See Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 36.138 See BD. FOR JUDICIAL ADMIN. COURT FUNDING TASK FORCE,JUSTICE IN JEOPARDY: THE

COURT FUNDING CRISIS IN WASHINGTON STATE 10-12, 20-22 (2004) [hereinafter JUSTICE IN

JEOPARDY], available at

http://www.courts.wa.gov/programs_orgs/pos_bja/wgFinal/wgFinal.pdf.139 See Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 35.140 See JUSTICE IN JEOPARDY, supra note 139, at 11, 20; see also Justice in Jeopardy,

WASHINGTON COURTS,

http://www.courts.wa.gov/JusticeInJeopardy/index.cfm?JusticeInJeopardy.showtab&tab=hom

e (last visited Mar. 11, 2013).141 See JUSTICE INJEOPARDY, supra note 13942, at 7-11.


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a diversity of political support and much more salience.

These examples of New York and Washington provide initial evidencethat there is some creative thinking in the judiciary about how to do a

better job of lobbying for court needs. There is much left to learn, and thereis much for courts to learn from each other. More systematic and scientificresearch is needed to identify what strategies are used, the capacity ofcourts to lobby effectively, and what works and what does not.

VI. Building Theory and Future DirectionsA. Building from Past Research

Beyond the sheer need to explore and know more, the theoreticalunderpinnings of this work are interesting and important to both scholarsand practitioners. Past research lends some credence to the catch-22 thatcourts face in their intergovernmental-relations activity. Empirical studies

suggest that courts, in general, behave conservatively when seekingresources, commenting on legislation that may impact them, or attemptingto fend off attacks.142 Some normative research also cautions againstbehaving too aggressively. The fears of how courts are perceived whenengaging the other branches still exist.143 Studies suggest the constraintsthat courts face beyond preserving their role as an impartial branch (e.g.,political saliency, capacity, and resources) also hinder their ability to lobbyas effectively as other government organizations.144 Ample evidence frompast scholarship suggests that courts, in general, still play it safe wheninteracting with other branches of government.145

On the other hand, some research suggests that some courts are verystrategic, innovative, and more effective at lobbying than others.146 Theinitial evidence from New York and Washington raises questions about theimpact of their efforts and what other court systems might be doing. Withthe increased focus on intergovernmental relations in recent years, are we

142 See Douglas & Hartley,Making the Case for Court Funding, supra note 20, at 35.143 See Hartley & Douglas, Budgeting for State Courts, supra note , at 251.144 Id.; see also Cannon, supra note 56, at 668; Douglas & Hartley, State Court Strategies and

Politics, supra note 1, at 35.145 See Resnik, supra note 7, at 282 (explaining that Chief Justice Rehnquist urged judges to

use caution when expressing opinions on congressional policy issues); see also Judith Resnik,

Trial as Error, Jurisdiction as Inquiry: Transforming the Meaning of Article III, 113 HARV.L.REV.

924, 1015 (2000) (noting that the federal courts are at the mercy of Congress and that

constructive relations between the two depends on good will).146 See, e.g., Geyh, supra note 36, at 1224-25 (explaining the federal judiciarys successful

lobbying efforts through consensus-building in Congress); Douglas & Hartley, Clues from

Oklahoma and Virginia, supra note 19, at 445 (noting the success of Oklahoma and Virginia state

courts in obtaining funding through various means).


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seeing an increase in the attention paid by other courts to best practices?Scholarship demonstrates that effective court leaders, or other policyentrepreneurs, have mobilized efforts to change our federal and state

courts.147

Studies indicate that chief justices, at the federal and state levels,commonly interact with other branches, both formally and informally. 148 Inaddition, other judges (e.g., trial court judges) may be called upon to lobbyfor court needs, like budgets or other statewide structural needs.149 Thisscholarship suggests that strong, effective, and established judicial leadersmight be more effective since they have had time to build relationships andpolitical capital with those they wish to influence.150 It also sheds light onthe importance of organizations of judges, such as state and federal judicialcolleges or conferences of judges.

There is also research detailing the role of court administrators andtheir administrative staff. Winkles 2003 study discusses the role of theAdministrative Office of the United States Courts and their Legislative

Liaison Office.151

State courts also have staff members devoted tointergovernmental-relations work. These staff members serve as importantintermediaries and allow judges to avoid the sometimes uncomfortableday-to-day politics of legislative work.

Finally, other studies demonstrate that at times courts can be verystrategic in mobilizing support: by calling on outside interests to help them(e.g., the bar);152 by organizing the bench (e.g., lower court judges) to aid in

147 See, e.g., Baar, The Scope and Limits of Court Reform, supra note 80, at 275-76 (noting that

local leaders have helped shape court reform); Cannon, supra note 56, at 668; Crowe, supra

note 8, at 73-74 (highlighting court reform under Chief Justice Taft); Wheeler & Katzmann,

supra note 19, at 1157 (explaining that the political branches have played a role in shapingcourt policy and reform); Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288

(explaining the role of Mississippi judges in court reform in that state).148 Baar & Baar, supra note 19, at 222-23; Buchman, supra note 8, at 1-2; Crowe, supra note 8,

at 78; Douglas & Hartley, State Court Strategies and Politics, supra note 1,at41.149 See, e.g., Baar & Baar, supra note 19, at 221 (explaining the role of individual judges,

such as administrative judges, in lobbying efforts directed at legislatures); Winkle & Oswald,

The Role of Trial Judges, supra note 19, at 288.150 See, e.g., Crowe, supra note 8, at 79-80 (describing Chief Justice Tafts effectiveness as a

judicial lobbyist because of his political experience and extensive network among legislators

and civil society).151 See Winkle,Administrative Office of the U.S. Courts as Liaison, supra note 8, at 43-44.152 See, e.g., id. (describing Chief Justice Tafts efforts to secure the support of the ABA in his

lobbying efforts and their pivotal role as his ally); Winkle, Judges as Lobbyists, supra note 19, at

270-71 (describing the federal judiciarys use of the public mass campaign as a technique to

influence the legislature); Winkle, Judges Before Congress, supra note 18, at 449-50 (describing

the judiciarys alliance with the National Association of Attorneys General to attempt Habeas

reform in the 1950s).


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political mobilization;153 and by building ties and coalitions with othersoutside of courts (e.g., business and political leaders).154 There is also ampleevidence that court officials and their partners place emphasis on strategic

and policy planning to improve interbranch relations and lobbying efforts.This is done at blue ribbon commissions, task forces, conferences, andsummits.155 However, there is no research that has yet gauged theeffectiveness of these court- and bar-initiated efforts.

B. Future ResearchPast research at the federal and state level points to important

questions that, despite past work, call for better answers. More research onintergovernmental relations focusing on state diversity could provideimportant knowledge to guide policy efforts seeking to change courtintergovernmental-relations strategies at the federal, state, and eveninternational levels. Given the recent attention to intergovernmental

relations by policymakers (and efforts of courts to revamp their relationswith other branches), How do courts perform the task ofintergovernmental relations now? Who lobbies for state courtsjudges,court administrators, members of the bar, or others external to courts?What do state courts commonly lobby for and againstlegislation thatimpacts court administration, for new rights, or changes in jurisdiction?How do courts lobby the other brancheswith professional lobbyists,coalitions, or use of outside groups? What impacts the capacity of courts tolobbymoney, FTEs, or other resources? What strategies do courts usenowstrategies and policy planning to improve court lobbying? Whatopportunities do they create for more effective lobbying?

CONCLUSIONPolicy decisions, themselves the products of conflict, impact the way

each court leader views a crisis. Attention to what produces theseconflicts, and how to effectively manage them, is a subject of politics thatentails building internal processes to plan for how policy decisions aremadeor building other political institutions that are designed to producesupport for courts. Interacting with and involving stakeholders in decisionscan produce effective and stable external relationships. There needs to be

153 See, e.g., Winkle & Oswald, The Role of Trial Judges, supra note 19, at 288.154 See, e.g., NATL CTR. FOR STATE COURTS & PEW CTR. ON THE STATES, supra note 81

(describing coalitions built by state judiciaries to accomplish political goals); Winkle &

Oswald, The Role of Trial Judges, supra note 19, at 288 (describing coalition building with

societal and political forces by judges to achieve Mississippi court reform).155 See, e.g., Adeboyejo & Buller, supra note 32.


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attention and resources devoted to building procedures for yearly planningand executing an effective legislative agenda. Past research and some of thepreliminary findings of my current research indicate that there are

enormous opportunities for court leaders to shape the political future ofthe judiciary as it interacts with other branches. There is a need to learnwhat other courts are doing and forum after forum has sought to d

Hartley: Moving Past Crisis . . . Promoting Parity

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