State Court Budget Forecast: Stormy, With Rising Backlogs

By Andrew Strickler
November 23, 2020

As state lawmakers begin preparing for upcoming legislative sessions amid a resurgent pandemic, a scattered but largely grim outlook for state court funding is beginning to take shape.

With some judicial administrators already dealing with staggered budgets and new technology costs, experts and advocates say court leaders have their work cut out for them to convince budget analysts and lawmakers to pay for pandemic recovery efforts.

Perhaps nowhere is the coming financial strain more apparent than in Florida, where legislators began gathering Tuesday in Tallahassee to face a historic $5.4 billion budget deficit over the next two years.

There, court leaders have drawn on their experiences dealing with a crush of foreclosures and other litigation following the 2008 financial crisis to project that nearly 1 million additional cases will be in front of the state's trial courts by the middle of 2021.

That estimate includes restarted proceedings delayed by shutdowns through the year and into 2021, as well as tens of thousands of new filings that have been put off during the pandemic. Also part of the expected surge is a large volume of cases involving credit card defaults, contract disputes and other matters born of COVID-19's devastating economic damage.

In a pending budget request and recovery plan, Florida court leaders said data collected through August indicated that nearly 5,000 trials already shelved by that time will still be pending in June 2021 — a number that will only grow as more jury trial cases come into the system in the meantime.

The "extraordinary" new workload will require $12.54 million in additional state money in each of the next three years to pay for hundreds of temporary judges and case managers, as well as for case "triage" and mediation services, among other expenses, according to a court analysis.

"These are big numbers, but they aren't some kind of doomsday scenario," said Paul Flemming, a spokesperson for the Florida court administrative office. "There is no gamesmanship here. It's an honest look at where things are and will be, and an honest assessment of the needed resources."

With many states still trying to get their heads around pandemic-staggered local economies, some judicial systems are already feeling the financial pain.

In the spring, California Gov. Gavin Newsom, facing a $54.3 billion shortfall, slashed $200 million from the judicial branch. The budget does include a one-time-only $50 million from state coffers to help trial courts clear virus-related backlogs, while sparing funding for court interpreters and some access-to-justice programs.

Facing plummeting state revenue, Florida Gov. Ron DeSantis over the summer also made a series of budget cuts. Among the pullbacks: a canceled $21 million appropriation for the construction of a new appellate court building in downtown St. Petersburg.

In New York, where the next fiscal year promises to include a gaping $14.5 billion budget hole, dozens of appellate judges over age 70 are being forced into retirement, a move court administrators said would save $55 million in the coming years and help prevent staff layoffs. 

As part of the plan — the court system is losing $300 million from a $3 billion budget — court leaders also suspended a program that allowed retired judges to serve as hearing officers in administrative matters.

At a recent New York State Assembly judiciary hearing, the head of an influential Supreme Court justices association was among those raising warnings about understaffed courts and a "staggering" expected influx of delayed COVID-19 filings.

There are about 140,200 civil cases pending in New York City's general jurisdiction trial courts, up about 8% from last year, according to data from state court administration. Pending felony criminal cases in the city are up 12% from last year, and the misdemeanor case load rose 41%.

With New York judges and staff working both virtually and in-person, "thousands of motions have been decided, case conferences and preliminary hearings held, grand jury convened and jury trials slowly being commenced," New York state court spokesperson Lucian Chalfen said. "Because of all their efforts, when we resume full operations, the number of pending cases will have been greatly reduced."

But as much of the country suffers through a brutal new surge, the financial and workload strains on courts will likely worsen.

Preliminary results from a fall survey by the National Center for State Courts showed that 45% of state and territory court systems are anticipating budget cuts. These include nine jurisdictions in which their "best-case scenario" included a reduced budget. The remaining respondents indicated they are anticipating no change in their budgets or possible increases, as well as those that didn't answer budget forecast questions.

"Several elaborated that their failure to respond or their anticipation of no change in the budget is a reflection of the uncertainty given current fiscal conditions," the NCSC said.

Bill Raftery, a senior NCSC analyst, said courts' post-pandemic financial pain will vary depending on their particular funding structures, the mix and extent of local case backlogs and the availability of "rainy day" funds, among other factors.

"We won't have a 50-state answer to a lot of these questions, and budgets are going to be impacted in very different ways, just like states have reacted to COVID in very different ways," he said.

And while places like Florida may be better prepared by having gotten through the 2008 crisis — it triggered a wave of foreclosures and other legal disputes that outlived supplemental state funding — Raftery noted that most courts don't have comparable experience, particularly in light of COVID-19's broader impact. They're also now in the uncomfortable position of forecasting recovery costs while the pace of the pandemic's spread in the U.S. continues to increase.

The timing of resumptions of in-person jury trials, which represent a small fraction of cases overall but still hit court budgets hard, is also a huge unknown.

Sixteen state court systems have in place blanket suspension orders for all in-person trials — half are "until further notice" — while courts across the country continue to work under locally ordered hearing suspensions and other restrictions. Florida's projections are based in part on the assumption of a 40% resumption of trials by June, and a return by the end of the third quarter to full operation.

"When the hurricane hits, you kind of know when you can resume the normal course of business, which is basically when the power goes back on," Raftery said. "But when is COVID going to end? When are we going to see in-person trials restored in earnest? So this is a whole different thing."

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--Editing by Philip Shea.