By James Swenson and Mary Vasaly

Politicians sometimes speak of “two Americas,” referring to the widening gap between rich and poor. The current economic crisis, which threatens greater judicial budget cuts, could mean two justice systems in America; one for the well off and another, second-class system, for everyone else. This is a very dangerous road to travel.

What has always set American democracy apart from other systems has been our guarantee of equal justice for all — rich and poor alike have the same rights under American law. Of course, those rights exist only to the extent that the courts remain able to enforce them. So far, your courts have been able to apply the rule of law regardless of who appears in court or what property they own, but recent judicial budget cuts make it very likely that our courts will become much less accessible to the poor.  

We recently wrote about the serious funding crisis faced by Hennepin County courts.  Earlier this year, the Minnesota Legislature cut funding to the state’s courts by $2.8 million. Overall, the judicial branch, which oversees Minnesota courts, has had to address a $19 million total budget shortfall this fiscal year. This comes at a time when the number of court cases is increasing, not decreasing.   

Unlike a state agency, the judicial branch cannot simply eliminate services to meet budget shortfalls. Courts are mandated by the Constitution to administer justice, and to administer it without delay, regardless of how many people walk through the doors. The court’s budget is almost entirely salaries. The court can cut jobs, of course, but those cuts impair the court’s ability to do its constitutionally mandated work. With very few budgetary options open, the only way to meet the funding shortfall has been to reduce or eliminate areas not mandated by the Constitution, including efforts to ensure equal access to justice for all.  

As a result, budget cuts have disproportionately hurt the disadvantaged. Often there are so many people seeking help at Hennepin County Court’s Domestic Abuse Center and so few staff left to assist them, that people must be turned away. One woman recently arrived at 7 a.m., to find that a line had already formed. She did not reach the head of the line by 10 a.m. and was told that she would have to return the next day. Having already risked retaliation by coming to seek a restraining order, she returned home without the courts’ protection and continued her exposure to real danger. Would she dare to return the next day?

Compounding the problem is the fact that the state’s public defender system has also suffered large cuts. A cornerstone to our justice system, reiterated by the United States Supreme Court in 1963 in the famous case Gideon v. Wainright, is that our constitutional right to a fair trial can’t be realized if “the poor man charged with a crime has to face his accusers without a lawyer to assist him.” Today, most poor people charged with crimes are assisted by public defenders. They are providing constitutionally guaranteed representation at a very reasonable cost to taxpayers. One recent study found that public defenders handle an average case for about the same cost as one hour of billable work for private attorneys. Yet, despite helping society meet its constitutional obligations at bargain rates, public defenders now face the daunting task of deciding which clients they will no longer represent. Already, in many counties, parents in child-protection cases are being left out.

Think it doesn’t affect you if you’re not disadvantaged? Think again. Courts cannot process cases quickly if there are too few required public defenders scheduled to be in too many places at once. Waiting for public defenders to appear causes significant delays for everyone. If a case can’t get started because the judge is waiting for the public defender to arrive, all the rest of the cases the judge is scheduled to hear that day, one of which might be yours, will also be delayed. It creates a snowball effect that can cause the whole system to grind to a halt.  

Efforts by the less fortunate to protect their economic rights are also being met with increasing delay. It is now a four–six-month wait to get a hearing in conciliation court. People filing these cases are often in urgent need of their money and cannot afford to wait. For example, one man whose car was kept by a crooked auto body shop after he brought it in for repairs, filed a claim, but had to quit his job while he waited for a hearing. It was unmanageable for him to travel two hours by bus to work each day. He eventually won a judgment of about $2,000, but by then he was no longer employed.

Even small business owners impacted by tax decisions or civil litigation may be unable to weather the financial storm caused by such delays.

It’s also become harder for those with smaller cases to settle quickly. In the past, parties with smaller court cases were able to resolve their cases promptly through Hennepin County Court’s nonbinding arbitration program. In 2007, half of the cases sent to that nonbinding arbitration settled. Now, the program has been eliminated — another victim of funding cuts. Wealthy people do not face these problems. They can afford to hire private mediation or arbitration services to resolve their disputes. They can even hire retired judges to act as a “rent a judge.” This distinct advantage enjoyed by the well-to-do has the effect of creating a dual system of justice for the rich and the poor.

If the poor no longer have equal access to justice, the fabric of our much-admired judicial system will be torn apart. American democracy will suffer a serious blow. Legislative candidates are now knocking on doors throughout our neighborhoods, asking for our votes. Before you decide whom to vote for, consider asking them what they will do to ensure the rights of all people to equal justice as well as life, liberty and the pursuit of happiness.

James Swenson is chief judge of the Fourth Judicial District (Hennepin courts) and Mary Vasaly is president of the Hennepin County Bar Association.