CLE Workshop: Building Effective Intergovernmental Relations

1. CLE Workshop:Building Effective Intergovernmental Relations Wednesday, June 11, 2014 Gatlinburg, Tennessee Tennessee Judges Conference, Gatlinburg, TN

2. Dr. Roger E. Hartley Professor of Political Science and Public Affairs Director, Masters of Public Affairs Program in Asheville, NC Tennessee Judges Conference, Gatlinburg, TN

3. Intergovernmental Relations and the Courts: What do we know? • Remarks today are based on research by Dr. Roger Hartley and his recently published articles in a New England Law Review symposium on “Crisis in the Judiciary” and a recent Symposium of the Arizona Law Review on Judicial Ethics • Roger E. Hartley. “Moving Past Crisis…Promoting Parity: How Effective Intergovernmental Relations can Build a More Co-Equal Judicial Branch.” 47 New Eng. L. Rev. 541 (2013). Can be download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2266524 • Roger E. Hartley. “It’s Called Lunch: Judicial Ethics and the Political and Legal Space for the Judiciary to Lobby.” 56 Arizona Law Review (2014). Can be downloaded at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2435257 • Dr. Hartley’s other works on court budget politics and judicial administration can be accessed at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=372528 Tennessee Judges Conference, Gatlinburg, TN

4. For the court system to exist as a preserver of legal norms and as a separate branch of government, it must maintain its institutional integrity while observing mutual civility and respect in its government relations. Principles for Judicial Administration, NCSC, July 2012 Tennessee Judges Conference, Gatlinburg, TN

5. Crises in the Courts; More Effective Political Effort • Conflicts impacting Courts are born of external relationships with stakeholders that may not fully understand the needs of courts, the role of courts, and the unintended impacts of policies that might impact court • Courts face unique intergovernmental relations constraints • Constraints necessitate attention to and improving intergovernmental relations • We need more research and best practices Tennessee Judges Conference, Gatlinburg, TN

6. Why Must Courts Enter the Political Process? • Every phase of the budget process is political… • Strategic Planning of the Budget • Requests from Departments to Create the Budget • Submission • Lobby for Passage and Approval • Allocation of Funds • Management of Funds • Requests for court reforms and approval are political • Battling Court Curbing Legislation is political Tennessee Judges Conference, Gatlinburg, TN

7. We’ve Talked About this Before • Past Efforts by American Bar Association • 2009 Summit on “Justice is the Business of Government” in Charlotte • Others • All highlighted Effective Intergov. Relations, Improved Budget politics, and Increased Awareness of the Role of the Judiciary • Efforts differ from state to state • Little Research, More to Know, Need for “Best Practices” Tennessee Judges Conference, Gatlinburg, TN

8. What Do We Need to Know? • The Unique and Not so Unique Constraints Courts face when Lobbying • Ethical Considerations? • How do Courts Plan, Adopt, and Implement Intergovernmental Efforts? • What Resources are devoted to these Efforts and what Strategies are used? • What do Agencies and other Governments do that Courts do not? • PAST RESEARCH? AND OUR DISCUSSION THIS WEEK Tennessee Judges Conference, Gatlinburg, TN

9. Constraints: An Intergovernmental Conundrum • Judges are expected to be isolated and impartial • There are worries about appearing “Too Political” • Concerns about inviting attacks by other branches • THUS…Courts may “Play it Safe” BUT • The budget process and efforts to create political change are, by definition, political • Without effective and competitive political effort, courts may lose out Tennessee Judges Conference, Gatlinburg, TN

10. Other Constraints Courts Face in Lobbying Efforts • The Conundrum • Courts Too Conservative in the Process? • State and Federal Rules Limiting Political Action • Other More Political Constraints: • Are Court Needs Politically Salient to Lawmakers? • Lack of Political Capital to Offer Lawmakers • Tenure of Court Leaders? • Who are our Best Court Leaders? Tennessee Judges Conference, Gatlinburg, TN

11. What Do We Know? • Limited Research on Court Lobbying and Court Budget Politics • On Federal Efforts (Winkle and others) • On Shifts from Local to State Funding • Lobby Strategy and Tactics • On Diversity of Funding Institutions Courts Face • Judicial Strategies: What Might Work? Not Work? Tennessee Judges Conference, Gatlinburg, TN

12. Preliminary Findings: Washington and New York • Some preliminary findings from Interviews with Officials in New York and Washington Provide Clues and Reason for New Research • A Story of New York: Building Stable Institutions and Process • A Story of Washington: Surrogate Lobbying Tennessee Judges Conference, Gatlinburg, TN

13. What Does All this Suggest? • Constitutional Reform: Direct Submission of Budget to Legislature • Reduce or End Restrictive Line Items • Submission of Well Justified Funding Requests With Data • Negotiation: Don’t Undersell Needs • R.E.S.P.E.C.T Is Earned; Created by Effective Political Work and Long Term Building of Trust Tennessee Judges Conference, Gatlinburg, TN

14. Building Political Salience is Doing Politics Better • Appealing to Judicial Independence NOT Effective • Lawyer Legislators Helps • Personal Contacts with Legislators • Informal Lobbying of Legislators • Use of the Chief Justice: Longer Tenure of Exec. Judges • Direct Lobbying by State Court Administrator • Lobbying of Local Legislators by Local Jurists • Mobilizing Political Allies: Issue by Issue • Building Strong; Stable Institutions within Courts for Intergovernmental Relations Work Tennessee Judges Conference, Gatlinburg, TN

15. More Discussion; More Research; Best Practices • Not Much Systematic Research on this Subject • We Need to Know What Courts Do and Don’t Do • We Need to Know What is Effective from the Standpoint of Who is Lobbied • We Need to Know More About Resources, Tactics, and Process Used by Court Officials • We Need to Re-Consider How Isolation Can Harm Court Salience, but Be Aware of Costs of Political Action • Challenge: We’ve Planned Before…Have We Implemented? Tennessee Judges Conference, Gatlinburg, TN

16. TOPIC #1The role of judicial leaders and state court administrators as the “face of the judiciary” to the legislative and executive branches. Tennessee Judges Conference, Gatlinburg, TN

17. Is there a best practice for how courts should build an internal staff, dedicate resources, and establish procedures for effective interactions with the other branches? • Have courts done a good job as serving as the face of the judiciary? How can court leaders improve? Do chief justices do a good job of staying in touch and communicating with the leadership of the other branches? Tennessee Judges Conference, Gatlinburg, TN

18. Can leaders of the judiciary learn anything from the way in which state agencies interact with government leadership? • What are the ethical constraints that may limit the effectiveness of court leaders in their policy-related communications and lobbying with the other branches? Tennessee Judges Conference, Gatlinburg, TN

19. TOPIC #2Recruitment of external entities, such as the business community or non-profits, to speak and advocate on behalf of the courts to the other branches. Tennessee Judges Conference, Gatlinburg, TN

20. How can court leaders know when they should recruit external support? • What are the important differences between recruiting outside help for budgetary versus non-budgetary issues? • What are examples of successful recruiting of external support and what are possible adverse consequences? Tennessee Judges Conference, Gatlinburg, TN

21. Can or should court leaders manage the lobbying efforts of court-related organizations, such as judicial conferences or associations, service providers and others? • Should court leaders contact the media to “tell the story” about what the courts do as a way to influence actions by the executive or legislative branches? Tennessee Judges Conference, Gatlinburg, TN

22. Branch Relations Where do we go from here? Tennessee Judges Conference, Gatlinburg, TN