To Serve All People - Modern Support

Modern Support

We propose an administrative structure parallel to the judicial structure, which will enhance the professional management of the judicial system, permit efficient use of resources and improve accountability at all levels.

While the Chief Justice is the chief executive officer of the judicial system, the state court administrator should be the chief operating officer of the administrative side of the system.
The Supreme Court would have the authority to appoint or dismiss the court administrator, and it would have policy review of the administrative office. That is a natural design for administrative accountability.
But it is not our intention that the court serve as the functional manager of the judicial system. The administrative office will do that, and it will do it best if the court accepts its role in administration as a board of directors.
We recommend an enhanced version of the present Administrative Office of the Courts, providing strong management of the statewide judicial system, and a similar administrative office for each judicial district.
The present AOC's name reflects its relatively subservient status. We suggest a name like Office of Judicial Administration to reflect its larger role. Its director would be the Chief Judicial Administrator.

High court responsibility

The Supreme Court's special position puts a responsibility on it to share information and control.
The Supreme Court's role in the judicial system has become more ambiguous over the years. It has always been the ultimate appellate court, and it has always been the leading administrative and policy body of the judicial system as well. The latter function, however, has come to take a greater and greater portion of the Court's time.
At present, for instance, the Court oversees the inferior state courts, some 35 boards and agencies that report to the Court, and in many ways the entire legal profession. In that sense, it functions as a board of directors the way the TVA Board does ? as a day-to-day center of inside direction.
The Court also makes final decisions on policy matters that deeply affect the judicial system, from cameras in the courtroom to limits on appeals. In that sense, it functions as a board of directors the way that state boards of higher education do ? as a periodic, outside review of recommendations that usually arise from outside the board.
All of which leads to a question about the Court's proper role in the future. If the administrative side of the judicial system is enhanced, will too much control rest in the Court ? especially considering that the Court is ill-prepared by knowledge or experience to play the leading role on some administrative issues?
Following the board-of-directors analogy leads one to envision outside directors chosen for expertise, but that seems unworkable in both conceptual and constitutional terms.

This concentration of control does oblige the Supreme Court to look for ways of sharing its responsibilities.
For instance, while the Supreme Court would logically appoint the Chief Judicial Administrator, that person and his administrative office will work with all levels of the judicial system. We recommend, therefore, that the Supreme Court's appointment involve consultation with the Tennessee Judicial Conference. The Administrator, by example, might be chosen from a list of nominees approved by the Executive Committee of the Tennessee Judicial Conference.
Over time, if an enhanced administrative office develops the expertise and competence that we envision, the Supreme Court may find it easier to back off of its own administrative role and focus more on its judicial and policy roles.
Likewise, to the greatest extent possible the Court should search out expertise elsewhere, and not necessarily just within the legal profession. The broad base of this commission's membership offers an admirable model, and we hope it stands as a useful example to the Supreme Court in the future.

Judicial Council role

The Judicial Council should be a focal point for implementation of judicial system policy.
The most obvious limit on the Supreme Court's power as an institution is the General Assembly's responsibility for budgetary and statutory change within the judicial system. The state's Judicial Council is the natural point of resolution.
The Council has an uneven record, but in recent years there are signs that its role is growing.
We encourage that trend. Many of our recommendations on the administrative side of the judicial system center on the rational allocation of resources. The Judicial Council, with members representing the legislature, the executive branch, a broad array within the judicial system and others, is the right forum for deliberation on those issues.
Further help could come from better comparative analysis of judicial system staffing and funding. Clear benchmarks could lessen the pull of politics in providing appropriate resources in appropriate places.

Parallel consolidation

The commission recommends changes in administrative structure consistent with the changes we suggest for the courts. Specifically, that includes consolidation of judicial districts and clerks offices.
We have not drawn up detailed plans. To a certain extent, they would depend on caseload figures that in some jurisdictions are still rudimentary. Some specifics would be better determined by experienced service providers.
However, we envision 8 to 12 judicial districts, rather than the present 31. The specific number of judges and geographical boundaries may be set by the legislature upon recommendation of the Supreme Court and the Office of Judicial Administration, but there are many other multi-county service divisions at that scale to provide helpful starting points.
Districts of that size would allow for both the efficient resource management and the specialization that we have described earlier.
The current system of multiple clerks offices should be eliminated, with a central record-keeping and administrative office for each district. The judicial system should have a uniform docket numbering system to ensure that accurate comparisons and evaluations of workloads can be accomplished.
In addition, the system should permit filing for all courts from all locations to minimize public confusion and maximize limited personnel and resources. Electronic record-keeping should greatly facilitate this change over time.

District presiding judges

The judges of each district should choose a presiding judge for a term of four years.
While the state's experience with presiding judges has been mixed to date, it has often been hampered because the districts were so small that the presiding judge had limited authority over his colleagues, and because the presiding judge has had no particular competence in administrative matters. Routine rotation of the role has merely multiplied these limits, often ensuring that presiding judges will avoid anything close to strong management.
We aim to remedy the former with a larger pool from which to select the presiding judge and the latter with a stronger administrative structure. The presiding judge would be the chief judicial officer, not the personnel manager or the clerk's negotiator.
Bigger districts, better data, and greater power ? in, for instance, the authority to assign cases ? make the presiding judge of the future a substantially enhanced version of the present one.

District administrative office

Likewise, we recommend a district administrative office for each judicial district and one for the Court of Appeals, each to be headed by a district judicial administrator.
The district offices would be responsible for:
? Implementation and enforcement of judicial system policy.
? Monitoring of calendar management for all cases within the judicial district.
? Administration of staff services, including those traditionally performed by clerks, bailiffs, court reporters, probation officers, all other support staff and those retained by the court for professional services.
? Administration of jury service, victim coordination, witness scheduling and other ancillary services.
? Administration of personnel, finances and records, including applications of new technology.
? Liaison with local government, other government agencies, bar associations and other community groups, news media and the general public.
? Management of facilities.
The district judicial administrator would be selected by the judges of the judicial district from three nominees qualified by the Chief Judicial Administrator.
The administrator would then be an employee of the state OJA and would report to the Chief Judicial Administrator. Normal standards of accountability would require that line of authority, and that line of authority works best when it coincides with the power to hire and fire.

Paired leadership

The judicial side of the system and the administrative side would proceed along parallel tracks.
The strong district judicial administrator is paired with a strong presiding judge. The two tracks merge only at the top, in the Supreme Court's authority over the Chief Judicial Administrator.
At first blush, this structure might seem like a creation of a two-headed monster. It is, however, a vast managerial improvement on the present system of any number of judges, multiple numbers of independently elected clerks and appointed clerks and masters, and a state administrative office with limited authority.
It is also no more two-headed than what chiefs of medicine, hospital administrators and their respective staffs deal with successfully on a daily basis. When functioning properly, the two divisions work as a team. But getting them to function properly may require separate lines of authority.
Accountability will flow vertically, along the parallel paths. An important part of personnel evaluation on each side, however, is how well a person deals with the other side.
We believe such a structure would allow judges to do what so many of them say they want to do ? get back to judging, and leave the details of computers, furniture, budgets and public relations to those who seek such roles. It would also bring some concepts of modern management into a system that is structured to resist them.

Administrative authority

The Office of Judicial Administration would have broad authority over the administrative side of the statewide system.
Its responsibilities would correspond to those listed for the district offices, but would broaden at the state level beyond the sum of the district parts. For instance, management of finances would include not just review of financial results, but also preparation and administration of the judicial system's budget.
The state office's responsibility also broadens to cover the oversight of uniform and high standards throughout the judicial system.
In addition to the statewide equivalents of the district responsibilities, the state office would also be responsible for:
? Management of the selection process, continuing education and evaluation of judicial personnel.
? Planning, research and evaluation.
The chief judicial administrator should be knowledgeable about judicial functions of the courts, but at least as importantly should also have substantial management training and experience. A similar standard applies to the district judicial administrators.

Some of the administrative responsibilities are self-evident. But it is important to note a shift in administrative strength for the sake of quality and accountability.
Take, for example, the issue of case management. Right now, the judicial system has no comprehensive way to track case scheduling, no way to measure differences among judges concerning efficient case management and no way to bring any such data to bear on either judges or other personnel.
A well-equipped administrative office, armed at best with the cooperation of a presiding judge and at least with the ultimate authority of the Supreme Court, could make a real difference by monitoring the calendar, developing the data, and making them part of judicial evaluation.
Unfortunately, under the present system there are some judges and clerks who believe they answer only to the electorate, which means to no one in particular.
While we do not intend for administrators to sanction judges, we do intend to build performance accountability into the judicial system. Only a stronger administrative office can bring that to bear.

Better research

If the judicial system is to function as an independent branch of government, it will have to make better use of research and evaluation.
Judicial leaders who aim to hold their own in determination of public policy will need to have better information. Right now, even the most basic data on costs, volumes and outcomes of judicial actions is almost impossible to obtain. Administrative policy is quite hard to set in the absence of administrative data.
Other areas that warrant better information include:
? Long-range strategies: For instance, alternatives to traditional dispute resolution, now widely proposed, should be systematically evaluated as they are put into place.
? Criminal behavior: What are the best predictors of criminal behavior? If one is single parenting, for instance, should we rethink divorce law or welfare rules or paternity obligations? What works?
? Law enforcement: Policy is often set by anecdote. Does three-strikes-and-you're-out legislation actually deter crime, or does it lead to full trials and appeals on the third crime, or does it make juries reluctant to convict? The judicial system should find out.
Most modern businesses that did as little research and development as the judicial system would soon be out of business.
The Tennessee Office of Judicial Administration doesn't have to do original research in all these areas. But it should at least be a center for factual information on these issues and how they will affect the judicial system. Often, the research is difficult because the data base is inadequate, and that should be the first priority for improvement.

Technological attitute

New technology offers a chance for the judicial system to be more accessible, informative, productive and efficient. It is a chance that should be seized at every opportunity.
It is impossible, of course, to predict the precise face of technology 30 years from now.
There are serious estimates that computing power could increase by a factor of a million in the next 20 years. If so, a task that now takes a computer a year could then be done in 30 minutes.
The implications of that change are staggering. It's safe to assume that, if we look back 30 years from now, our beginning suggestions in this area will seem laughably simple.
The important point, though, is a matter of attitude. Technology can be a scary thing, because change can be scary. Technology can cause serious dislocations, and we should look for ways to soften that impact through continuing education.
But the system should also look for ways to embrace new technology, because applied properly it can enhance the fundamental mission of the judicial system. A stronger administrative arm could both foster innovation through diverse pilot projects and foster public access through enforced compatibility.
A system that considers switching from 14-inch paper to 11-inch paper as substantial change, or that resists submission of documents by fax transmission because they lack "original" signatures or seals, is a system far from embracing new technology.
The rest of the American economy is not rejecting technology for the sake of protecting jobs or past practices. If the judicial system does so, it will add one more reason for public disdain.
If, on the other hand, the judicial system welcomes new technology and actively uses it to improve both external access and internal management, it will redirect the system's energy toward serving the public.

For keeping track

The first goal should be creation of an open, electronic Judicial Information System.
Basic data about Tennessee courts are unavailable. Time and again in the Commission's own studies, we were told that the data we sought were not available. No one, for instance, can say even how many cases were filed in any given year, or what their outcomes were.
Some courts seem barely beyond quill pen registry. Others have made halting steps forward, but just recently the judicial computer systems of the four largest counties were not compatible with each other.
Documents of Tennessee courts should be filed and maintained electronically. They should be accessible for inspection, but not alteration, by all members of the bar and the public at any time.
Electronic bulletin boards should provide information on the status of every pending matter and offer the opportunity for scheduling of any procedures. Notices and instructions should be simple to understand and easy to use, and computer terminals should be reasonably available in public buildings for convenient access.
The advent of some electronic record-keeping systems has made retrieval of information more restrictive than previous manual methods. The goal of the Judicial Information System should be precisely the opposite. It should broaden access and improve understanding.
Settlement of costs, fines or fees should be authorized by electronic means from remote sites, without requiring a court appearance. When appropriate, such as in minor traffic violations, fines or costs should be payable electronically from the scene of the incident.
The Judicial Information System should be accessible to, and integrated with, information systems of other government agencies.

For better justice

Technology also offers avenues for improvement in the judicial process, both in the traditional courtroom and elsewhere.
For instance, it is easy to envision immediate electronic transcripts produced by voice-recognition software.
It is easy to envision remote access by interactive video presentation, whether the remote person is an expert witness in California, a prisoner at the jail five blocks away ready for arraignment, or even an appeals court judge unable to reach the site of an oral argument.
It is easy to envision an electronic entry point to the judicial system, especially for the most common disputes ? domestic relations, landlord-tenant, etc. Rental-car agencies offer computerized directions to specific destination; hotels have touch-screen guides to a city. A more sophisticated computer could guide a person through parts of the legal system, spelling out legal rights and responsibilities, setting out various alternatives, and offering instructions on how to further access the system.
In fact, as artificial intelligence advances, computer models might apply principles of law to individual fact patterns, and thereby offer forecasts of the rights and responsibilities of the parties. The computer, in essence, would provide a mini-trial, and the likely outcome would be a far larger number of cases resolved long before they come to a traditional courtroom.
These ideas may seem dreamy to some people, but they are merely the ones that are relatively easy to envision. There will be many more to consider as time goes on.
Again, though, let us emphasize that the important goal here is not a specific blueprint, but an openness to these new ideas for the sake of improving justice. The worst mistakes would not be in a few experiments that did not turn out as well as planned. The worst mistakes would come from efforts to stifle new technology, from over-estimations of the costs of change and from perverse applications that would diminish justice rather than improve it.

State funding

Responsibility for the financial support of the state judicial system should be assumed by the state government.
At present, the state judicial system is like a business that does not receive financial results from its subsidiaries. No one can produce basic total revenue or expense figures for the judicial system because so much of it is controlled locally.
Financing by local government leads to fragmented and disparate levels of financial support, with a resulting unevenness in judicial services. It creates rigidity, and it often leads to inadequate resources. It makes uniform standards and procedures difficult to administer. At its worst, it leads to the direct involvement of the judiciary in local politics.
We have previously recommended that trial courts, which now include the General Sessions courts at the county level, should be consolidated into one level of state trial courts. Our financial recommendation is consistent with that structure, but consistency is not our only reasoning.
For accountability and improvement, both the individual budgetary parts and the totals are important. A unified state court budget is the logical means to financial and administrative coherence.

Sufficient funding

The state will get what it pays for.
Throughout our deliberations, the commission has tried to resist falling back on the usual finding that the judicial system needs more funding. We do not expect major increases in governmental revenues or major changes in public mood, and in many ways our discussions aim at providing better justice with stable or slowly increasing funds.
But it is also fair to say that if the state does not pay judges and administrators anywhere near the amounts common in private practice and business, it risks losing the persons of high caliber who could do so much for the system. If it continues inadequate provision of support services, it risks losing the opportunity for better public service.
The capacity of the judicial system to perform its functions does not depend entirely on the financial resources available to it, but funding is not an irrelevant issue either. Too often the executive and legislative branches of state and local government have acted as if it were, and too often the judicial system has failed to make the case for sufficient resources.

Not for revenue

The use of courts as local revenue-producing agencies is an abuse of the judicial process.
It has long been recognized as unconstitutional for a judge's income to be dependent on the outcome of cases. But a similar result often occurs when the budget of a court is set in relation to the fines the court imposes or when a county or city comes to rely on whatever surplus is produced. The quality of the local courts should not depend on their severity. For that matter, the quality of local roads should not either.
Judicial fees, user charges applied to various procedures of the system, should be charged to offset, in part, the expense of operating the system, but should not be so high as to preclude access to the court's services. Fees should apply uniformly statewide and should be waived for indigent parties. All fees should be deposited with the general fund.
Judicial fines, penalties applied by the courts, should be set by the General Assembly as part of the state criminal and traffic codes and other laws. Fines for the violation of municipal ordinances could be set by state law or by municipal charter or ordinance when there is no overriding state interest. Fines for violation of state law should be deposited in the general fund. Fines for violation of local-government ordinances could be deposited in the general fund of the local government.

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