Justice On The Fly

The NCBA for many years has promoted better funding for the state’s judicial system and its efforts continue. Despite recognition of the problem by the Board
of Governors, the funding for the N.C. courts has steadily declined while the demands on the system have steadily increased year after year. I have been practicing long enough to remember when family lawyers were amazed when they heard that it could take more than three months to get a temporary hearing on
custody, child support, or post-separation support in other states.

How were people supposed to make do during such long delays? What would happen to the children? Now that unacceptable circumstance has come to be the reality in many districts across North Carolina – particularly in the faster growing urban counties. Now it is common for six months or more to pass before a temporary hearing can be held. The high volume of cases filling the trial calendars far exceeds the capacity of the system to hear them in a timely fashion. It is not the fault of the judges or the court personnel that cases are delayed far longer than is acceptable.

The meager funding for personnel and the lack of physical facilities are the primary causes of the delays. The funding for the judges, court clerks and personnel all come from state taxes as budgeted by the Legislature. The funding of the court system as a percentage of the state budget has steadily declined for many years. The courthouses and other physical facilities are funded by county taxes and these facilities vary widely from county to county. There simply are not enough courtrooms or judges to get the job done in many districts. The courts in many counties are overwhelmed by the volume of cases being filed and heard.

More and more pro se parties are filling the courtrooms. In many counties, more than 50 percent of the family law cases have one or more pro se parties. This strains the system at all levels, from the clerk who must assist the novice litigant, to the judge who must find the time required to write a long order without an attorney to prepare a draft. The demands on the system have frequently forced the courts to dispense justice on the fly. That is not an attack on anyone in the judicial system but simply an acknowledgement of the reality of the situation.

Judges are expected to hear more and more cases in a day just to allow some kind of a hearing for the parties and the hearings are becoming shorter and shorter, to the point that essential facts cannot be presented. The situation has become so extreme that serious questions of Constitutional Due Process arise. I recently had a temporary child custody case involving a detailed child custody evaluation and each party was allowed one hour to present their entire case. There was not enough time to lay a foundation for the admission of the child custody evaluation report necessary to have it admitted into evidence. Justice on a stopwatch does not provide a full opportunity to be heard even in routine cases.

Critical facts and information are often never presented. In 1953, Justice Sam Ervin, Sr. stated the applicable due process principle: “The law of the land clause embodied in Article I, Section 17, of the North Carolina Constitution guarantees to the litigant in every kind of judicial proceeding the right to an adequate and fair hearing before he can be deprived of his claim or defense by judicial decree.”Eason v. Spence, 232 N.C. 579 (1953).

So who is going to change this unacceptable situation? There are fewer and fewer lawyers in the Legislature each session to advocate for the judicial system. Most litigants who confront the frustrating court system do not know how the system is funded and they are unaware that they are experiencing a systemic problem. When judges raise their concerns about the problems, they are often discounted by legislators as being self-serving.

That leaves it to you and me – to recognize the problem as having reached the point where the judicial system is often no longer able to meet its minimal Constitutional responsibilities. As members of the State Bar, as members of the NCBA and the FLS, and as concerned citizens, we each must make our voice heard to members of the Legislature and the county commissioners to have them aggressively address the situation by securing adequate funding of the judicial system. Otherwise, it cannot do the job that every citizen expects it to do. If
the current trend continues, the public will lose respect for the judicial system and the rule of law in our State will be seriously eroded.

I have watched the system slowly erode for 38 years, but the pace of the deterioration and its impact on the public has reached the point that we can no longer deny its unacceptable condition and turn a blind eye to it. For a start, the FLS could form a committee to see what we can do to help. I am confident that through consistent concerted efforts, the situation can be turned around and our judicial system can be restored to a level that will make us all proud – if we act individually and collectively to achieve that goal.

This article was originally published in the July 2013 issue of the North Carolina Family Bar Association’s Family Forum. The article is available online at http://familylaw.ncbar.org. The article is reprinted here with permission of the North Carolina Family Bar Association.

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