NLPES Question of the Month
What role, if any, has your office had in evaluating services provided by your state's judicial branch of government, and are there legal or other impediments to doing such studies in your state?
From: Kerry Fitzgerald, Louisiana
In Louisiana, we have an interesting situation. We have a state audit law that gives our office authority to conduct audits, evaluations, and investigations in general. We also have another law that says we must audit each state department within a 7-year time period. Originally, the second law included the judicial branch as well as the executive branch. However, the Supreme Court was very upset about this and lobbied the legislature to exempt them from the second law, which the legislature eventually did. Their argument was that our audit would produce a separation of powers problem, and that we were not capable of evaluating the "doling out of justice," so to speak. I found it quite interesting, however, to note that the Supreme Court had come to us not long before they began this lobbying effort and asked us to conduct a performance audit of the court system for them! I also found it interesting that they have routine financial audits done by the financial and compliance auditors in our office, and they do not seem to have a separation of powers issue with that situation!
So - what this all amounts to is that we do not include the judicial branch in our 7-year plan audits. However, I assume we could conceivably go in and do a performance audit under the law that gives us the authority to evaluations in general. This has not been put to the test yet, so I do not know if it would go through or not. I feel sure they would put up a fight if we did attempt to do so.
From: Jane Thesing, South Carolina
The SC Legislative Audit Council has never conducted a review of the judicial branch or its services. However, it is the LAC's position that there is no legal or other impediment to prevent us from reviewing the judiciary, if such a request were received and approved by the Council.
From: Gary Brown, Michigan
We in Michigan have done some projects which involved the judicial branch. Some have addressed overall programs in which the judicial branch has a part, such as child support enforcement and delinquent youth intervention services. Others have focused more directly on judicial branch functions, such as assessment and recording of traffic fines, fees, and driver license points, court treatment of statutory wills, and court use of statutory provisions for purging first offense records for youths committing certain crimes. We have not encountered any real legal impediments in these projects.
From: Bill Thomson, Arizona
In Arizona we have limited ability to audit judicial branch functions. In the early 1980's, the State Bar came up for Sunset review and the Supreme Court refused us access--citing separation of powers. (The Legislature responded by deleting the statutes that created the Bar and made practicing law without a license illegal, but the Bar continued in existence under rules of the Court.) However, our Legislature has placed several programs under the judiciary including probation programs (adult and juvenile) and foster care review boards. We have audited these programs without any difficulty. We have not, nor do I expect we ever will, audit the actual operations of the courts, such as caseloads, timeliness, etc.
From: Jim Behunin, Utah
Here is the web page of an audit we did of the juvenile justice system in Utah. There is a feeling among a few judges that the legislature tries to exercise too much authority over the courts. Some view the audit recommendations as strictly advisory and question whether the legislature can hold them accountable for performance expectations. For example, some question the imposition of sentencing guidelines that were enacted into law by the legislature. On the other hand, most judges and court administrators felt our juvenile justice audit gave them the opportunity to provide legislators with some feedback. This audit can be found at our web site: http://www.le.state.ut.us/audit/ad_99dl.htm.
From: Heather Moritz, Colorado
In Colorado we have done a lot of performance and financial audits of agencies within the Judicial Branch. Some of our more recent performance audits include Juvenile Probation and Senate Bill 91-94 Programs (these are programs based in Colorado's 22 judicial districts which are aimed at keeping juvenile offenders from being placed in detention or commitment facilities). We also do a yearly financial audit of the Judicial Branch as part of our Statewide Financial Audit.
I'm unaware of any legal impediments that would keep our office from conducting audits in the Judicial Branch, although we do tend to stay away from issues involving judicial discretion (e.g., sentencing practices).
From: Joel Barrera, Massachusetts
We have done several reviews of issues related to the state courts, including a review of the Arrest Warrant Management System run by the Trial Court, and an upcoming review of the guardian ad litem system under the Family and Probate Court. We can look at any creature of state government, save the Legislature itself.
From: Joel Alter, Minnesota
Perhaps the most direct study of the judicial branch done by our office was a report issued in 2001 that examined Minnesota's district courts-including issues such as case processing time and judicial workloads. However, many other studies have looked at other court-related functions and used court data. These include studies of guardians ad litem (1995), probation services (1996), child protection (1998), public defender services (1992), the state's psychopathic personality commitment law (1994), juvenile out-of-home placement (1999), and various studies of recidivism among juvenile and adult offenders. State law authorizes our office to evaluate state-funded services, and we have interpreted this to include judicial branch as well as executive branch services.
However, Minnesota judicial branch officials have not always welcomed our review of court-related functions. Some judges told us that our district court study violated the "separation of powers" doctrine in the state constitution. Some also cited a 1997 case in which the Missouri Supreme Court said that a "management review" of that state's court system was unconstitutional. Most court officials have cooperated with our judicial branch studies-providing data and participating in surveys and interviews-and they have usually complimented the resulting reports. However, the courts seem to have an underlying uneasiness about our office's role in the oversight of court functions.
Still, the Legislature appropriates a lot of money for court services, and the courts are a primary instrument for the implementation of important social policies. Thus, we anticipate that there will be further requests from the Legislature for our office to conduct court-related studies.