State courts hear 98% of all civil matters—equivalent to roughly 20 million cases per year. They address disputes over matters such as housing, finances or debts and family relationships. Their processes often are complex, time consuming and daunting to navigate, especially without legal counsel.
State civil courts are largely a function of state governments, though they are constrained in some ways by the U.S. Constitution. As such, state legislatures play an important role in shaping their respective state court systems. Legislative roles vary by state and depend on state constitutions and court rules decided by the state judiciary. Nonetheless, many civil court processes are prescribed through statute and courts are funded through budget appropriations, which means state lawmakers have some authority to shape state courts and improve how millions of individuals and families navigate them.
What Is State Legislatures’ Role Vis-à-vis State Civil Courts?
Political authority in states is divided across legislative, executive and judicial branches, and while separation of powers is key to the workings of the American government, no democratic system exists with an absolute separation of powers or an absolute lack of separation of powers. Governmental powers and responsibilities intentionally overlap, and state constitutions are the starting place to determine the role of state legislatures relative to state judiciaries. Importantly, the legislative role in shaping court processes does not undermine a judge’s discretion to decide individual cases.
Typically, the power of the judiciary is balanced by the legislature's ability to pass laws and propose constitutional amendments. Each state constitution is unique, varying drastically in adoption, length and amendment procedures. Depending on the state, legislatures may be required to use constitutional amendments where statutes would not suffice.
Ultimately, state legislatures are the branch most accountable to the public. This relationship provides state legislatures with opportunities to ensure their state courts run efficiently and effectively for the public good.
Families Caught in the Courts
Families are negatively affected by immensely slow civil court processes caused by budget constraints, extensive caseloads, lingering backlogs and a lack of sufficient alternatives to prevent disputes from resulting in litigation. An analysis by the Court Statistics Project at the National Center for State Courts found that backlogs in civil cases were already increasing independently of the COVID-19 pandemic. Without constitutional mandates common in the criminal justice system, such as the right to a speedy trial, civil legal processes often lag behind criminal justice processes. As such, it is in the purview of legislatures and courts to create fair and just processes that produce timely, but person-centered resolutions to civil matters, which address the modern challenges faced by Americans.
When cases move slowly through court systems, the people involved can be harmed by prolonged uncertainty. Lingering questions such as “How much will this cost? Will I lose my home? Are my parental rights going to be infringed upon or terminated?” can haunt families for months and even years before a case is finally decided. Not only does this harm families and individuals, but state governments face increasing costs related to court administration, further burdening state budgets and placing strain on all three branches of government.
Slow proceedings are not the only and may not be the biggest issue. Litigants in civil cases are not guaranteed a right to counsel because, under the Sixth Amendment of the U.S. Constitution, this right is guaranteed only in criminal proceedings. This policy directly forces many people—particularly low- to moderate-income people who cannot afford a private attorney—to navigate unfamiliar systems without the aid of a lawyer. In such cases they often are up against opposing parties with well-resourced private attorneys.
The Self-Represented Litigation Network estimates that three out of five people in civil cases go to court without a lawyer. At a minimum, this creates an unlevel playing field between the parties involved. At its worst, this impacts the civil rights of an individual when they are removed from their home due to an eviction or a child’s ability to be enrolled in school or obtain healthcare is threatened due to the lack of a guardianship. This imbalance between parties can lead to worse outcomes for families even when the law is on their side.
How Can Legislatures Make Court Processes More Family Friendly?
While it’s easy to see courts as inherently and inevitably complex—or even irretrievably broken—legislatures have the authority to intervene and improve civil court processes. One way to frame these types of improvements is around the concept of shaping courts to be more family friendly.
In simple terms, family-friendly courts would operate with a high degree of sensitivity to the experiences of the vulnerable families they serve. Family-friendly courts are distinct from family courts, which are a special type of state civil court used in some states. Family courts handle family law issues and custody disputes and are separate from other civil courts.
State legislatures have jurisdiction to adopt policies to make their states’ civil legal processes more family friendly. When evaluating state policy options, it’s beneficial to consider the experience of the children and adults before, during and after they become involved in formal court proceedings. Each stage includes hazards to be avoided and opportunities to be realized.
How Families Become Involved With Civil Legal Proceedings
Generally, individuals must face state civil courts when they have a financial or family crisis that has brought them into conflict with other laws or legal requirements. In this way, families are affected by policies that can lead them into or steer them away from formal litigation. Sometimes, non-judicial alternatives are not available. For example, in some states minor guardianship appointments are decided by probate court when a child’s parent(s) die, regardless of whether the parents named a desired guardian in their will. Situations like this are similar to getting on a highway on-ramp during rush hour. The lack of non-judicial alternatives can result in unnecessary complexity and challenge court capacity with additional traffic.
Alternatively, some types of policies can help families avoid the on-ramp and instead provide options akin to a frontage road—they get the family to a similar place, but without the heavy traffic, time delays and risks. Example policies include legal rights and protections granted before the initiation of court proceedings or policies that encourage disputes between parties to be remedied without formal litigation.
Some policy solutions for relatively simple cases, such as evictions due to non-payment of rent or guardianships to enroll a child in school, can reduce the use of formal litigation in civil matters, improve processes for families and reduce strain on court systems. For example, legislators can increase the statutory time a tenant can pay past-due rent before a landlord may formally file for eviction. This process—known as “curing”—can increase the number of cases remedied before an eviction proceeding begins, therefore reducing the number of cases filed in court. Curing can help tenants stay in their homes and landlords receive the payments they are due without incurring litigation costs—a benefit for both parties. These can include unnecessary monetary, time, psychological and other costs.
The Experiences of Families Navigating Civil Legal Processes
During formal court proceedings, the parties involved are affected by statutes and court rules that govern the court process. For example, minor guardianship cases, which establish a legal relationship between an adult and a minor to ensure the minor is cared for, do not always have straightforward jurisdiction. In some states, minor guardianship cases are handled by various types or divisions of courts depending on the circumstances of the case, and each of these courts may have different rules or procedures. This complexity poses challenges for families or individuals who may struggle to know where to go for support.
Legislatures have tools to reduce the complexity of relevant laws and court processes, making them more easily understood by families without legal experience or expertise. For example, legislatures need to establish processes to ensure an appropriate adult has the legal rights and responsibilities to care for a child when their parents are absent or otherwise unable to do so. Complex processes around minor guardianship can delay a caregiver’s ability to provide for a child’s healthcare and educational needs. Families are also affected during the civil court process by policies that do, or do not, provide access to legal counsel. Families without legal representation generally experience longer time in court systems, higher costs or greater adversity before civil legal matters are resolved.
Legislators can also make court systems more family friendly by implementing policies that provide families with ways to exit the court process after it has commenced. These “off-ramp” policies are ways to divert cases out of formal litigation and resolve disputes for the benefit of both parties, as well as court systems and state budgets, by ensuring courts are not clogged with cases that could be resolved elsewhere.
The Aftermath of Civil Legal Proceedings
After formal court processes have concluded, families and individuals are further affected by policies that govern access to court records such as expungement or record sealing. For example, tenants who have experienced eviction can face significant hurdles in finding a new rental home because the court judgment may stay on their record for years. Legislators can explore policies that exclude discrimination against individuals with an eviction or sealing or limiting access to eviction records to alleviate future housing challenges. Families and individuals can struggle with the costs of litigation long after formal proceedings have concluded.
In the case of minor guardianship, sometimes questions or problems arise after a guardianship has been established. For example, there may be uncertainty about who has a responsibility to ensure the child is being well cared for, how a parent can regain responsibility over a child, or whether the minor can obtain their records when they become an adult. Some states explicitly address these challenges in statute while others defer to judicial discretion on a case-by-case basis.
State policymakers have ample reasons to carefully consider the often negative impact state civil court processes have on family well-being. For instance, eviction proceedings can lead directly to homelessness, and guardianship proceedings can irreparably break apart families.
Fortunately, legislatures have the authority to improve both the experience and the outcomes of civil court proceedings. Eviction and minor guardianship are two examples of family-serving systems deserving of a closer look. In two upcoming reports, NCSL will dive further into how six geographically, demographically and politically diverse states approach civil court processes involving eviction and minor guardianship. These reports will highlight a range of common challenges and opportunities for lawmakers to consider when making state civil court processes more family friendly.