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Rule of law in a recession

Posted: October 1, 2010 5:53 p.m.
Updated: October 4, 2010 5:00 a.m.

In 1776, John Adams published “Thoughts on Government.” This document was highly influential in establishing the foundations and framework of our nation. Two very important concepts Adams promoted were that America ought to be a nation of laws, not of men, and the separation of powers between the executive, judiciary, and legislature.

The rule of law, as a concept, dates back to antiquity and possesses moral implications and promotes institutional stability, predictability, and effectiveness.

Economists and governance scholars believe that the rule of law is vital to economic growth. The World Bank Institute compiled the results of several studies by economists that clearly show that the better the rule of law, the richer the nation. This concept has been widely acknowledged, resulting in Western donors pouring billions of dollars into rule-of-law projects and legal reforms in countries around the globe (“Order in the Jungle,” The Economist, March 15, 2008).

The judiciary was created as a separate and co-equal branch of a government based on the founding fathers’ belief in the value of the rule of law. Its functions are not peripheral; they are central and essential to our constitutional and statutory form of government.

State courts are under particular strain during an economic downturn. Not only must the courts themselves be funded, but also the many agencies upon which the court system depends to carry out its functions such as law enforcement, prisons, and social service agencies.

The judiciary, while a separate and co-equal branch of government, relies on the executive branch to execute the laws and its judgments and on the legislative branch for funding. This creates conflict between the respected principle of the judiciary’s being separated and distanced from politics and the recent necessity of its playing a more active role in the budget process. Can the independence of the judiciary be maintained if it must come to the legislature hat-in-hand each year? Should it have to fight for funding over executive branch agencies?

This past budget process exposed many of these issues. The budget committee proposed a severe cut to the judicial department. A bill was proposed to increase various court fees in order to make up for the shortfall. The fee bill failed. The courts and its advocates were forced to go into an aggressive political mode in order to assure adequate funding, which was eventually, albeit painfully, secured.

Each year the Chief Justice delivers a report on the State of the Judiciary to the legislature. Over the past decade, Justice Toal has managed a court system with an increasing caseload that has steadily relied less and less on state appropriations while increasing fees and obtaining grants from the federal government to make up the gap. Even with less support from the state’s general budget, South Carolina enjoys a more modern and efficient court system employing greater technology and innovations such as drug courts and special courts for business contract cases, condemnation cases, and other complex litigation.

This type of leadership and fiscal management is important because while it is crucial for the judiciary to be adequately funded, it should also exercise the same sort of stewardship of the taxpayer’s money that is expected of agencies statewide. The judiciary is not and should not be immune from budget downturns. However, while numerous cut-backs and cost-savings measures have been implemented to deal with the cuts and reduced appropriations to the judiciary budget, the judiciary can sustain only so many cuts before its ability to meet its constitutional duties are compromised.

The debate over judicial funding is expected to continue in upcoming sessions as more cuts are expected. The increased reliance on court fees raises legitimate access to justice concerns. Local governments continue to share some funding responsibility for portions of our court system. In these times, providing funding is difficult for the counties and cities as well. We also face the prospect that federal grants, which have primarily been used to implement a statewide electronic case management system, may not continue to be available in future years.

Even in these challenging economic times, we must not lose sight of the importance of a reliable system of justice that is a cornerstone of our free society and our economy. There is a cost to providing this system of justice, but there is a much greater cost if it is not provided.

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