current as of August 25, 2011

Written Comments Received for

August 26, 2011, Judicial Council Business Meeting

Name and Title Affiliation Topic Date of Receipt Page No.s

1. Mr. Arnold Mednick, Referee Superior Court of California, County of Los Angeles

Budget Proposals 2012-2013 and options to

restore funding

8/22/11

Pages 2-72

2. Hon. Katherine Feinstein, Presiding Judge

Superior Court of California,

County of San Francisco

Request for Supplemental Funding, 3 pages 8/22/11

Pages 73-75

3. HI & RH Prince William-Bullock III: Stewart

On his own behalf (California

Home Owners)

Judicial Council form UD-100 by bank

attorneys to deny home owners their due

process rights

8/22/11

Pages 76-86

4. Mr. Sigfredo “Fred” Cabrera On his own behalf (California Taxpayers)

Proposed Judicial Branch Contracting

Manual

8/23/11

Pages 87-91

5. Hon. Charles Horan, Judge of the Superior Court of California,

County of Los Angeles

Alliance of California Judges

Budget cuts to the trial courts 8/24/11

Pages 92-94

6. Priya S. Sanger, President et al Bar Association of San Francisco

Trial Court Funding: Request for approval of

certificate of appearance for complex case

management appearance

8/24/11

Pages 95-100

7. Priya S. Sanger, President et al Bar Association of San Francisco

Trial Court Funding: Response to August 18,

2011, memorandum from the General

Counsel’s Office of the Administrative

Office of the Courts

8/24/11

Pages 101-106

From: Refer Arnold Mednick [AMednick@LASuperiorCourt.org]

Sent: Monday, August 22, 2011 1:46 PM

To: Judicial Council

Subject: Comment to Judicial Council Item 7 for 8/26/11 Budget Proposals FY 2012-2013

Attachments: inherentpowerskansas.pdf; wachtlervcuomo.pdf; courtfunding.pdf

Follow Up Flag: Follow up

Flag Status: Completed

“A court set up by the constitution has the power of self preservation and the power to remove all obstacles to its successful and convenient operation." See Cal. Jur. 3d, Courts, Section 23.

Across the United States, courts have found inherent power to order payment from public funds

for necessary staff, including court clerks, research assistants, court reporters, bailiffs and SJOs,

even in times of budget cuts, provided the usual means to obtain funding had been exhausted and

access to justice was threatened. See, Inherent power of courts to compel appropriation or

expenditure of funds for judicial purposes, 59 ALR 3d 569; Judicial Use of the Inherent Power

Doctrine To Compel Adequate Judicial Funding, 46 La. L. Rev. 157 (1985). Some recent options to restore funding:

1. Recently, the Chief Justice in Kansas used inherent powers to impose an emergency surcharge on

court filings without legislative approval, which funds were used by the court. See attached article.

2. With NY state was on the verge of bankruptcy, Gov. Cuomo recommended a 10% reduction in the

1991-92 State Court budget requested by Chief Justice Wachtler as the minimum needed for administration of justice. Wachtler laid off 500 employees and filed suit against the Governor and

legislature under the implied powers doctrine - the judicial branch as a constitutional co-equal branch of

government had implied power of self preservation - to have enough funds to carry out its constitutionally mandated duties. Case was settled. Attached article written by one of Cuomo's staff

members reviews the law and recommends against such suits.

3. In 2003 the ABA Committee on court funding prepared a report suggesting, among other things, having the Chief Justice request that every attorney in the state write the governor and legislature

requesting them to restore court funding. (It also lists a Wachtler suit as an option).

4. Request the Attorney General to write an AG Opinion that a state budget which

severely under funds the third branch is unconstitutional.

12 JUDICATURE Volume 88, Number 1 July-August 2004

JUDICIAL INDEPENDENCE, the power of the PURSE,

and inherent JUDICIAL POWERS

The use of inherent judicial powers to make up budget shortfalls

raises fundamental questions about judicial independence and the nature

of the separation of powers.

by G. Gregg Webb and Keith E. Whittington

ESTELLE CAROL

www.ajs.org JUDICATURE 13

Money lies at the root ofmany conflicts betweenthe branches of govern-ment. It is at the heart of many pol-icy disputes—as different interests,political parties, and government offi-cials stake out divergent priorities inthe raising and spending of publicfunds—and creates substantial institu-tional tensions within any system of sepa-rated powers. In such systems, thelegislature rightfully holds the “powerof the purse,” given the intimate con-nection between effective democraticrepresentation and control over gov-ernment taxation and spending.Indeed, the mother of all legislatures,the British Parliament, largely cameinto existence in order to expand and legitimate the flowof revenue into government coffers.

As the very example of the birth and growth of Parlia-ment indicates, however, control over the treasury is apowerful political weapon that can be used against othergovernment institutions. In controlling the purse strings,the legislature can reward or punish members of theexecutive and judicial branches, depending on how they

conduct their offices. As James Madi-son noted in explaining the opera-tion of constitutional checks andbalances, “the legislative departmentalone has access to the pockets of thepeople.”1

An effective power of the purse givesthe legislature a powerful trump card

when disagreements arise between it andthe other branches of government, one

that is so potent that it can threatenjudicial independence. To limit thisthreat, the American founders wroteinto the U.S. Constitution the guar-antee that salaries of judges shall notbe diminished during their time inoffice. (Although such a guarantee iscommon in American state constitu-

tions and endorsed by the United Nations, worldwide it isone of the least-used constitutional provisions for secur-ing judicial independence.2) Though important to pre-serving the independence of individual judges to makecontroversial decisions, the guarantee of undiminishedsalaries remains fairly marginal to the central conflictsbetween courts and legislatures over money and the abil-ity of the judiciary to serve as an effective and independ-ent branch of government. In extreme cases, judges maybe denied such basics as an office, an adequate supply ofpaper, and an up-to-date compendium of statutes.3 Fortu-nately, American judges are rarely faced with such depri-vation, but the adequacy of resources provided bylegislatures to handle judicial business continues to be acontentious issue—especially in the states.

The authors thank Ken Kersch, Howard Gillman, and the anonymous review-ers for their helpful comments.

1. THE FEDERALIST NO. 48, at 310 (James Madison) (Clinton Rossiter, ed.,New York: New American Library, 1961).

2. Linda Camp Keith, Judicial independence and human rights protectionaround the world, 85 JUDICATURE 195, 198 (2002).

3. See, e.g., Jennifer A. Widner, BUILDING THE RULE OF LAW 68, 217, 219(New York: W.W. Norton, 2001).

On March 14, 2002, Chief JusticeKay McFarland of the KansasSupreme Court ordered an across-the-board increase in court fees inthe state.

A new challenge is emerging inthis recurrent struggle between legis-latures and judiciaries over resources.During the past three decades,administrative and budget authorityover state judicial systems have beenconcentrated in state supremecourts. As a consequence, toughbudgeting decisions increasinglyinvite direct confrontations betweenthe heads of the legislative and judi-cial branches of state governments.The possibility of a constitutionalstandoff now looms in the states ascentralized judicial administrationscombine their institutional musclewith the doctrine of inherent judicialpowers to secure their own fundingwhen state legislatures are eitherunable or unwilling to authorize ade-quate appropriations. This conver-gence of contemporary bureaucraticand fiscal reality with fundamentalconstitutional principle threatens todilute traditional notions of the leg-islative power of the purse.

Kansas has recently provided aglimpse of this possibility. On March14, 2002, Chief Justice Kay McFar-land of the Kansas Supreme Courtordered an across-the-board increasein court fees in the state. This “emer-gency surcharge” was aimed at mak-ing up a $3.5 million shortfall in thejudiciary’s fiscal year 2003 budget,which was itself dwarfed by thestate’s broader projected deficit of$680 million for that fiscal year. Thesupreme court order establishing thesurcharge relied upon the judiciary’s“inherent power to do that which isnecessary to enable it to perform itsmandated duties.” In an accompany-ing press release, Chief JusticeMcFarland explained that, “whilethere are things the people of Kansasmay have to give up in these tryingfiscal times, justice cannot and mustnot be one of them.”4

This innovative use of inherentjudicial powers raises fundamentalquestions about judicial independ-ence and the nature of the separa-tion of powers. This article examineshow states reached this point andraises some questions about the pathahead. It begins by reviewing thedoctrine of inherent judicial power,

its development over time, and itsconnection with the centralization ofjudicial administration. It then takesa closer look at events in Kansas andthe broader constitutional questionsthey raised. It closes with some cau-tionary notes on the use of such toolsto improve the conditions of thejudicial branch.

The expanding doctrine The doctrine of inherent judicialpower licenses the courts to takenecessary actions to fulfill theirconstitutional functions, even whenthose actions are not specificallyauthorized by either constitutionaltext or legislative statute. Inherentjudicial power operates as animplicit “necessary and proper”clause to the establishment of thejudiciary as an independent andequal branch of government. In itsmost minimal guise, the doctrineempowers judges to control andmanage their own courtrooms—forexample, by punishing contempt ofcourt, excluding photographersfrom the courtroom, or appointingcounsel for criminal defendants. Inits more muscular form, the doc-trine authorizes judges to protectthemselves and their functionsfrom the neglect or interference ofthe other branches of government.It thus operates both as an implica-tion and guarantor of judicial inde-pendence.

It is in this more muscular form,as a positive safeguard of judicialindependence, that the inherentpower doctrine has been extendedto budgetary matters. This budget-ary power developed, however,from relatively modest efforts atcourtroom management. When atrial judge ordered that a jury besequestered during a murder trialand the county commissionersrefused to pay for the jurors’ lodg-ings, the Pennsylvania SupremeCourt explained in 1838 that thejudge had the authority to drawdirectly on the public purse tocover such “contingent expenses ofthe court” and provide for “emer-gencies” that require “the promptand efficient action of the court”

without the usual deliberation andconsent of the relevant legislativebody.5

Similarly, state supreme courtshave backed judges who haveclaimed the authority to set thesalaries of courthouse personnel orwho have ordered other institutionsto provide, or to provide funding for,temporary facilities for holding courtafter the regular courthouse was con-demned, the operation of a court-house elevator, chairs and carpetingfor a courtroom, and courthouse airconditioning.6

Such disputes have prompted statesupreme courts to issue particularlyhigh-flown paeans to judicial inde-pendence. The Indiana SupremeCourt observed in the elevator case,for example:

Courts are an integral part of the gov-ernment, and entirely independent;deriving their powers directly from theconstitution, in so far as such powersare not inherent in the very nature ofthe judiciary. A court of general juris-diction, whether named in the consti-tution or established in pursuance ofthe provisions of the constitution, cannot be directed, controlled, orimpeded in its functions by any of theother departments of the government.The security of human rights and thesafety of free institutions require theabsolute integrity and freedom ofaction of courts.7

In explaining why county commis-sioners were required to pay clericalstaff in the courthouse at a rate set bythe judges rather than at the generalrate established for comparablecounty employees, the ColoradoSupreme Court quoted approvinglyfrom the opinion of the trial courtthat the separation of powers

14 JUDICATURE Volume 88, Number 1 July-August 2004

4. Kansas Supreme Court Order 2002 SC 13, asamended March 22, 2002 (www.kscourts.org/sur-charg.htm, last accessed February 6, 2004); State ofKansas Office of Judicial Administration PressRelease, March 14, 2002 (www.kscourts.org/fee-news.htm, last accessed February 6, 2004).

5. Commissioners v. Hall, 7 Watts 290, 291 (Pa.1838).

6. See, e.g., State ex rel. Schneider v. Cunningham,39 Mont. 165 (1909); Wichita County v. Griffin, 284S.W.2d 253 (Tex. App. 1955); Bass v. County ofSaline, 171 Neb. 538 (1960); Ex Parte Turner, 40Ark. 548 (1883); Commissioners v. Stout, 136 Ind. 53(1893); State ex rel. Kitzmeyer v. Davis, 26 Nev. 373(1902); Pena v. District Court, 681 P.2d 953 (1984).

7. Board of Commissioners v. Stout, 136 Ind. 53,59-60 (1893).

www.ajs.org JUDICATURE 15

required that each of the threebranches

not interfere with or encroach on theauthority or within the province of theother. . . . In their responsibilities andduties, the courts must have completeindependence. It is not only axiomatic,it is the genius of our government thatthe courts must be independent, unfet-tered, and free from directives, influ-ence, or interference from anyextraneous source.8

Several features of this traditionaluse of inherent judicial powers are

notable. The amounts at issue usu-ally involve small contingenciesrather than the central operation ofthe courts. The disputes usuallybegin with local officials. When nei-ther the local judge nor the local fis-cal authority relents in the standoff,the matter is appealed up the judi-cial hierarchy. These traditional fis-cal battles are ultimately asymmetricproceedings between a local legisla-tive body and a state’s highest court.They become as much a matter ofstate and local divisions as inter-branch divisions, often with state leg-islatures either unaffected orimplicitly behind the state courts.

In such circumstances, supremecourts can serve as relatively neutralarbiters capable of providing satisfac-tory dispute resolution for two

equally situated parties. Statesupreme courts, which usually havenot directly benefited from tradi-tional uses of inherent judicial powerby local courts, have proven willingto reduce and void lower-courtorders as well as uphold them andare capable of applying externalstandards and outside accountabilityto ensure the reasonableness of suchjudicial requests.9 The potentiallyirresolvable conflict of two equal andcoordinate branches of government,each holding fast to its respective

claims of autonomy and prerogative,is thereby abated by the presence ofa common judge—the state supremecourt.10

The doctrine has been put tomore ambitious use in recent years.In December 1969, the judges of thePhiladelphia Court of CommonPleas submitted a budget request tothe city’s finance director of nearly$20 million for fiscal year 1970. Themayor ultimately recommended,and the city council approved, abudget of just under $16.5 million.When the court’s request for anadditional $5 million was refused,the judges ordered the city to appro-priate the additional funds. In Com-monwealth ex rel. Carroll v. Tate, thePennsylvania Supreme Court eventu-ally awarded the Court of Common

Pleas approximately $1.4 million forwhat was left of the fiscal year.

In a period of general judicialassertiveness vis-à-vis other branchesof government, especially in thedesign of equitable remedies, Carrolllifted the doctrine of inherent judi-cial power from its roots in discretefiscal disputes over courtroom tem-perature and clerks’ salaries and posi-tioned it as a viable judicial recoursefor obtaining multimillion-dollarappropriations and supplanting thenormal budget-making process. Inorder to “protect itself” from theother branches, the Carroll courtargued, “the [j]udiciary must possessthe inherent power to determine andcompel payment of those sums ofmoney which are reasonable andnecessary to carry out its mandatedresponsibilities, and its powers andduties to administer [j]ustice.”11 Car-roll influentially held that courts wereentitled to whatever funds were “rea-sonably necessary” for the “efficientadministration of justice.”

Though the court understood thatthe demand for limited city fundsand services was increasing across theboard, judicial requests were totrump all others. “The deplorablefinancial conditions in Philadelphiamust yield to the [c]onstitutionalmandate that the [j]udiciary shall befree and independent and able toprovide an efficient and effective sys-tem of [j]ustice,” the court rea-soned—including the creation of“[n]ew programs, techniques, facili-ties, and expanded personnel.” Whatwas “reasonably necessary” to operatethe city courts was ultimately not tobe decided in the normal legislativeprocess in the context of the overallbudget, but by “[c]ourt review.”12

Cases such as Carroll did notbecome common, however, in partbecause many states altered their sys-tems of funding the judicial branchso as to minimize the local conflictsfrom which the doctrine hademerged. Just as Carroll was beinghanded down, members of theAmerican Bar Association’s Commis-sion on Standards of Judicial Admin-istration were arguing thatconstitutional propriety dictated

8. Smith v. Miller, 153 Colo. 35, 40 (1963). Forsimilar examples, see O’Coin’s, Inc. v. Treasurer of theCounty of Worcester, 362 Mass. 507 (1972); In reSalary of Juvenile Director, 87 Wn.2d 232 (Wash.1976).

9. This was obviously not true in the relativelyfew instances in which the state supreme court hasitself been the initiator of the inherent judicialpower claim, such as when the WisconsinSupreme Court squared off against the statesuperintendent of public property over who hadthe authority to appoint and remove the court’sjanitor. In re Janitor of the Supreme Court, 35 Wis. 410(1874).

10. On the “logic of the triad in conflict reso-lution,” see Martin Shapiro, COURTS (Chicago:Univ. of Chicago Press, 1981). On the fundamen-tal risk of interbranch conflict in a system of sepa-rated powers, see Keith E. Whittington, Yet AnotherConstitutional Crisis?, 43 WM. AND MARY L. REV.2093 (2002).

11. Commonwealth ex rel. Carroll v. Tate, 442 Pa.45, 52 (1971). See also William Scott Ferguson,Judicial Financial Autonomy and Inherent Power, 57CORNELL L. REV. 975 (1972); Jeffrey Jackson, Judi-cial Independence, Adequate Court Funding, andInherent Judicial Powers, 52 MD. L. REV. 217 (1993).

12. Id. at 56, 57.

The doctrine of inherentjudicial power licenses thecourts to take necessaryactions to fulfill theirconstitutional functions.

16 JUDICATURE Volume 88, Number 1 July-August 2004

that the “judiciary will always be sub-ordinate to the legislature on signif-icant matters of finance. It is for thelegislature to determine which‘essential services’ the governmentwill provide and to decide the judi-ciary’s share of the common finan-cial shortage.”13 The better solution,they urged, was unitary budgeting,which would link administrationand budgeting and allow for morecentralized and efficient manage-ment of judicial expenditures.

This recommendation was widelyaccepted, and many state judiciariesshifted away from relying on localfunding sources, such as county com-missioners, in favor of consolidatedbudgets approved by state legisla-tures. Pointing to budget conflictsbetween county governments andlocal courts such as the one that gaverise to Carroll, the PennsylvaniaSupreme Court even ordered thestate legislature to take over fundingof the state judiciary, though the statehas taken few steps to comply withthat order, partly out of concern overthe tax implications.14 At the sametime, state courts were given greaterspending flexibility through lump-sum budgets rather than detailed,itemized budgets—allowing judges tobuy their own carpeting without spe-cific legislative approval. The growthof the inherent judicial power doc-trine, however, created a “remotedanger” that the judicial systemmight “try to secure its appropria-tions by mandamus,” to the likely“discredit” and embarrassment ofboth branches.15 This potential con-sequence suggested to some that theshift to unitary budgeting would ren-der the inherent judicial powers doc-trine “legally and politicallyimpotent.”16

The New York standoffThe “remote danger” was realizedand the constitutional and institu-tional implications of these develop-ments were made particularlyevident in a 1991 funding dispute inthe state of New York. In submittinghis budget to the legislature, Gover-nor Mario Cuomo recommended a10 percent cut from Chief Judge Sol

Wachtler’s $966.4 million request forthe state judiciary. As legislators andthe governor negotiated, the chiefjudge told the press, “as far as I’mconcerned, that’s an unconstitu-tional budget,” because the governorhad not passed on the judiciary’s fullbudget request.17 The legislatureeventually compromised with anappropriation of $889.3 million forthe judicial branch—more than thegovernor’s recommendation but sub-stantially less than the chief judge’srequest.

Chief Judge Wachtler reacted tothe legislature’s action by filing a law-suit in state court claiming that thejudicial branch was entitled to thefull amount of its request based on itsinherent power to compel funds forits maintenance. Governor Cuomocountered by filing a federal lawsuitseeking to dismiss the chief judge’ssuit, thereby preventing any changeto the legislature’s version of thejudicial budget. The federal districtcourt demurred. After substantialpublic and political maneuvering,the chief judge largely relented and asettlement was reached that providedfor only a very modest increase,restoring the judicial budget to 1990levels, just days before the state casewas set for argument.18

Despite its inglorious end, Wachtlerv. Cuomo represents an importantturn in the development of inherentjudicial power in the budget context.Of course, Wachtler involved amountsfar exceeding anything previouslycontemplated in such cases. Byinvolving nearly 9 percent of theconsolidated budget of the entirestate judiciary, the chief judge was nolonger seeking to fill specific gaps inthe judiciary’s budget but rather toprovide for the judiciary’s generalfinances. Perhaps more ominously,absent federal intervention, the com-bination of unitary budgeting andthe assertion of inherent judicialpower left no place for the disputinginstitutions to go. The constitutionalequality of the three coordinatebranches of New York’s state govern-ment replaced the institutionalinequality present in earlier inherentjudicial power disputes. Unlike even

the Carroll situation, all state courtswere implicated in the New York suit,as the governor and the press werequick to point out.19 Constitutionaldeadlock and informal compromisewere the only available options.

Fiscal autonomy in KansasThe recent economic downturn andattendant budgetary pressures inmany of the states have givenrenewed significance to these doctri-nal and institutional developments.Recent fiscal relations between thejudicial and legislative branches inKansas parallel the conditions inPhiladelphia and New York that ledto their respective inherent-powershowdowns. As in Pennsylvania andNew York, the Kansas courts havefaced serious financial neglect at thehands of their legislative peers. Agovernment-wide funding crunch inKansas in 2002 brought the situationbetween the two branches to a head,with fiscal and political stakes com-parable to those raised in New York.The Kansas courts, however, adoptedan innovative political strategy thatproved more successful than that oftheir predecessors in New York—but that raises its own constitutionaldifficulties.

Developments in judicial adminis-tration and budgeting in Kansas dur-ing the past 30 years mirror nationaltrends, including the adoption ofstate funding of the judiciarythrough unitary budgeting and theconsolidation of administrativeresponsibility for the state’s judicialbranch in its supreme court. In 1972,the state’s voters ratified a constitu-tional amendment making the legis-lature responsible for funding all

13. Geoffrey C. Hazard, Jr., Martin B. McNa-mara, and Irwin F. Sentilles III, Court Finance andUnitary Budgeting, 81 YALE L.J. 1286, 1292 (1972).

14. County of Allegheny v. Commonwealth, 517 Pa.65 (1987); Pennsylvania State Association of CountyCommissioners v. Commonwealth, 545 Pa. 324 (1996).

15. Hazard et al., supra n. 13, at 1300.16. Carl Baar, The Scope and Limits of Court

Reform, 5 JUST. SYS. J. 274, 281 (1980).17. Elizabeth Kolbert, Wachtler Says Cuomo Cut

Judiciary Funds Unconstitutionally, N.Y. Times, April11, 1991, at B5.

18. For an overview of the case, see Howard B.Glaser, Wachtler v. Cuomo: The Limits of InherentPower, 14 PACE L. REV. 111, 122-135 (1994).

19. Id. at 130.

www.ajs.org JUDICATURE 17

Kansas courts. Five years later, thelegislature exercised some of thatauthority by placing all district courtsunder the administrative purview ofthe state supreme court and shiftingfinancing of all court system person-nel to the state. (The state has notyet assumed all non-salary operatingexpenses for the judiciary from thecounties.) Since 1978, the judicialbranch has been required to submitits budget to the executive branchDivision of the Budget, which thenproduces a single state budget that is

submitted to the legislature andbecomes the basis for legislativedeliberations.

Judicial complaints of inadequatefunding by the state legislature havebeen common for years. In the yearsleading up to the 2002 confronta-tion, the executive routinely reducedthe judiciary’s requested budgetwhen compiling the state budget tosubmit to the legislature, imposinghiring freezes on the judiciary ineight of the ten years prior to 2002.(While case filings rose 54.6 percentbetween 1987 and 1999, the numberof judges increased only 5.5 percentand nonjudicial employees only 9

percent during the same period.20)Insufficient funding in the regularbudget led to a recurrent pattern ofannual judicial service cutbacks,salary reductions and furloughs fornonjudicial employees, and supple-mental appropriations from the leg-islature to carry the courts througheach fiscal year. In fiscal year 2001,the legislature’s initial appropria-tions left a shortfall in the judiciary’s“maintenance budget” (the amountneeded to maintain salaries andwages of existing employees) of $1.2

million; in fiscal year 2002, the short-fall increased to approximately $2million.21

The Kansas judiciary invoked itsinherent judicial power in the midstof the budget process for fiscal year2003. In spite of the judiciary’sexpressed concerns about the short-falls of previous years, the legislaturecut the 2003 maintenance budget by$3.5 million. The state was projectingan overall revenue shortfall of $680million, rendering any substantialimprovement in the judicial budgetunlikely. Instead, legislators urgedChief Justice McFarland to seek“innovative means of securing thenecessary funding.” On March 8,2002, the chief justice responded byordering an “emergency surcharge”on existing court fees to be paid intoan emergency fund separate fromthe state treasury and available “onlyfor [j]udicial [b]ranch expenditures”approved by the chief justice.22

The chief justice followed form injustifying this exercise of inherentjudicial powers. In an earlier 2002State of the Judiciary message, shereviewed the courts’ recent fiscal

woes and concluded, “The simpletruth is the [j]udicial [b]ranch can-not perform its constitutional andstatutory duties with such a shortfallin funding,” even though the “courtsare the last bulwark of freedom asguaranteed by the Bill of Rights . . .[and a] fully functioning court sys-tem is essential to the American wayof life.” Though “there are things thepeople of Kansas may have to give upin this fiscal crisis, justice cannot andmust not be one of them.” 23

This message also included arenewed call for a change in budgetprocedures so that the judiciarycould submit its budget requestdirectly to the legislature withoutexecutive intermediation. The chiefjustice’s justification for this pro-posal echoed Chief JudgeWachtler’s arguments in New Yorkand similarly laid the implicit foun-dation for autonomous judicialaction. A direct budget submissionwas necessary “to safeguard [thejudiciary’s] constitutional positionfrom invasion by the [e]xecutive[b]ranch,” and though the legisla-ture ultimately made the appropria-tions, the chief justice blamed theexecutive branch Division of theBudget for “many of the fundingproblems the [j]udicial [b]ranchfaces each year” by making “drasticcuts before [the judiciary’s budgetrequest] is even seen by the [l]egis-lature.” Indeed, given the thorough-ness of the judiciary’s own budgetreview process, which ensures that“every request is necessary,” and thelack of “expertise . . . as to judicialoperations and needs” in the execu-tive branch, “all cuts made [were]arbitrary because there [were] noreasonable cuts left to be made.”24

In issuing the “emergency sur-charge” order, the chief justice didnot provide elaborate authority forher action—the order itself madeclear that the court relied on itsinherent power. The review of thebudget situation in the order and thechief justice’s other statementsimplicitly established the groundsfor meeting the “reasonable neces-sity” standard outlined in earlierinherent judicial power cases. The

20. STATE OF THE JUDICIARY: ANNUAL REPORT OFTHE CHIEF JUSTICE OF THE KANSAS SUPREME COURT 2(2002) (www.kscourts.org/2002soj.pdf, lastaccessed February 8, 2004).

21. Chief Justice Kay McFarland, JudicialBranch Budget Issues: Testimony before the Sen-ate Ways and Means Committee, February 7, 2002(www.kscourts.org/budgetmf.htm, last accessedFebruary 8, 2004).

22. Kansas Judicial Branch Fiscal Year 2003Emergency Surcharge, 2002 SC 13 (as amendedMarch 22, 2002) (www.kscourts.org/surcharg.htm,last accessed February 8, 2004).

23. Supra n. 20, at 10 (emphasis omitted), 15,16.

24. Id. at 12.

The Kansas Court broke newground by invoking its inherentpower in order to raise its ownrevenue rather than to mandateappropriations from thelegislature.

18 JUDICATURE Volume 88, Number 1 July-August 2004

Kansas Supreme Court had itselfasserted more than a century before,“It can hardly be supposed that theaction of the supreme court may bethwarted, impeded or embarrassedby the unwarranted intermeddlingof others without any power in thesupreme court to prevent it.”25

Breaking new groundIn turning to the inherent power doc-trine to resolve its budget dispute withthe state executive and legislature,the Kansas courts followed in the foot-steps of the New York courts from adecade before. The Kansas Court,however, broke new ground by invok-ing its inherent power in order toraise its own revenue rather than tomandate appropriations from the leg-islature. This unprecedented step cre-ated distinctive constitutional andpolitical repercussions.

Although inherent power hadbeen used to compel legislatures toprovide judicially needed resources,judges had previously drawn a brightline between such actions and theraising of revenue. The MichiganSupreme Court, for example, usedthe taxation example to show whytraditional uses of inherent judicialpower did not create separation-of-powers problems: “This broad powerto assess and declare the needs ofadministering justice does not usurpthe fiscal authority of the legislativedepartment. The courts do not levytaxes, or appropriate public monies.Those things must be done by thelegislative bodies.”26

In another prominent inherentpower case, the PennsylvaniaSupreme Court had similarlyasserted that “[c]ontrol of statefinances rests with the legislature. . . .The function of the judiciary toadminister justice does not includethe power to levy taxes in order todefray the necessary expenses in con-nection therewith. It is the legisla-ture which must supply suchfunds.”27

On the other hand, in 1990 amajority of the justices of the U.S.Supreme Court blurred the line inthe context of equitable remedies,recognizing that taxation by judicial

order was an “extraordinary event”that potentially could fall within judi-cial power, leading four justices toobject in a concurring opinion that itis “not one of the inherent powers ofthe court to levy and collect taxes.”28

The Kansas Supreme Court’s“emergency surcharge” steers a care-ful revenue-raising course. As theKansas attorney general noted in hisopinion supporting the court’spower, the surcharge is characterizedas neither “a docket fee . . . service oroperational charge” nor “a tax . . .deposited into the state generalfund,” both of which are circum-scribed by constitutional and statu-tory provisions.29 By withholding thecollected funds from the state treas-ury, the court appears to want toavoid running afoul of the state con-stitutional requirement that “[n]omoney shall be drawn from the treas-ury except in pursuance of a specificappropriation made by law.”30

The Kansas judiciary does havesome limited statutory authority toset docket fees. However, this wouldnot seem to include the emergencysurcharge, unless the statute is “readin light of the inherent authoritypossessed by the supreme court totake such action as is necessary tomaintain its independence as a co-equal branch of government,” as theattorney general suggested.31 Thechief justice herself has only everpointed to the abstract inherent judi-cial power as the authority for heractions, not any legal context specificto Kansas. The Kansas court’s ordergives previously uncontemplatedmeaning to the concept of judicialfiscal independence.

Political implicationsThe political implications of thecourt’s move are equally ground-breaking. As Wachtler v. Cuomodemonstrated, a state judiciary’seffort to compel a state legislature tofully fund its budget request invitesintransigence and puts the two co-equal branches at loggerheads. Thevery political and financial calculusthat would lead a legislature tounderfund the courts in the firstplace would also lead it to resist judi-

cial efforts to claim a larger share ofthe state budget and crowd out otherconstituencies. While courts havebeen successful in claiming inherentjudicial power to order (usuallylocal) institutions to make discreteexpenditures, they were notablyunsuccessful in their one effort totrump the state legislative budgetprocess.

The Kansas court has effectivelysought the same outcome—to man-date its preferred judicial budget—but by means that do not impinge onthe legislature’s ability to satisfyfavored interests in its budgeting.Elected officials clearly risk paying apolitical price when either raisingtaxes or denying appropriations. TheKansas court absolved the legislatureof facing either option by raising rev-enue on its own.

Chief Justice McFarland was well-positioned to take the initiative. InKansas, the justices of the supremecourt are chosen by merit selectionand subject to periodic, non-compet-itive retention elections. Since thatsystem was instituted, no justice hasever come close to losing a retentionelection, and McFarland herself hadserved on the high court for a quar-ter century. Although the governor’sproposed fiscal year 2003 budget hadfallen short of the judiciary’s request,the courts were largely exempt fromthe deep cuts imposed by the gover-nor and the legislature across therest of the state government. Addi-tional funding for the courts wasincluded in separate budget itemsthat were packaged with several pro-posed tax increases. More politicallysalient, and far more expensive,

25. Chicago, Kansas, and Western Railroad Com-pany v. Commissioners of Chase County, 42 Kan. 223,225 (1889).

26. Wayne Circuit Judges v. Wayne County, 383Mich. 10, 22 (1969).

27. Leahey v. Farrell, 362 Pa. 52, 56 (1949).28. Missouri v. Jenkins, 495 U.S. 33, 51 (1990);

Id. at 74 (Kennedy concurring, quoting Heine v.Levee Commissioners, 86 U.S. 655, 661 (1873)).

29. Kansas Attorney General Opinion No.2002-17, 2 (www.kscourts.org/ksag/opinions/2002/2002-017.htm, last accessed February 8,2004).

30. KAN. CONST. art. II, § 24.31. K.S.A. § 60-2001 (2002); Kansas Attorney

General Opinion No. 2002-17, 7. The court itselfmade no reference to this statute.

32. Supra n. 4.

www.ajs.org JUDICATURE 19

causes than the needs of the courtwere featured in the legislative strug-gle over this tax package. Ultimately,the package was rejected by a coali-tion of dissident conservative Repub-licans, who had taken a “no newtaxes” pledge, and nearly all theDemocrats, who accused the Repub-lican majority of fiscal mismanage-ment and a reliance on regressive taxschemes.

Legislative supportIt is unsurprising, then, that legisla-

tors generally responded with enthu-siasm to the Kansas court’s initiative,since it freed them of any responsi-bility for the political fallout frommaking an unhappy fiscal choiceregarding the judiciary. Far fromchallenging the judiciary’s assertionof authority, as Governor Cuomohad done in New York, the otherbranches encouraged the court tomove forward and sought to bolsterits authority. As noted, the attorneygeneral issued an opinion backing

the court’s innovative use of inher-ent judicial powers. The chief justice,in ordering the surcharge, reportedthat “the legislative leadership inboth houses and on both sides of thepolitical aisle . . . showed under-standing of and concern for the cri-sis facing the [j]udicial [b]ranch”and had “expressed [support] forthe [j]udicial [b]ranch to seek inno-vative means of securing the neces-sary funding.”32

In earlier committee hearings onthe judicial budget, one senator sug-

gested, “Why don’t you just sue theheck out of us?” The chief justiceresponded, “Suing won’t get youanything soon.”33 The chair of theSenate Ways and Means Committeeindicated that the courts wouldhave the first claim to any new rev-enue, but noted that if “we don’thave it, we can’t put it in.”34 Afterthe court order imposing the emer-gency surcharge was issued, theKansas Senate Judiciary Committeechair exclaimed, “I’m glad to seethe courts take some action to meettheir financial needs,” and declaredthat the court had the power to dowhatever “the court believes it hasthe power to do.”35 The HouseSpeaker simply announced that thelegislators’ hands were tied: “Whoare we going to appeal to? Thesupreme court?”36 And the governorgave the chief justice “high marks”and praised her for taking “boldsteps when necessary.”37

Well-placed policy makers hadsent clear signals to the chief justicethat they were substantively support-ive of her budget stance, and theybacked judicial authority when shetook an initiative that required nopolitically costly response from

them. Indeed, the Kansas court’sturn to judicial user fees is in keep-ing with broader tendencies in statecourt budgeting to emphasizecourt-generated revenues. Whilesuch tendencies have raised con-cerns on the judicial side that legis-latures may come to rely on suchcourt fees and give less support tothe courts from general tax rev-enues, it has traditionally beenunderstood that the decision toturn to such revenue streams was byits nature a legislative one.38

Beyond KansasFew courts would be tempted to fol-low the lead of Judge Wachtler ofNew York and run headlong into apolitical struggle with the legislativeand executive branches, though hisactions followed naturally from thehistoric development of the inherentjudicial powers doctrine when com-bined with unitary budgeting. ChiefJustice McFarland has found whatmight prove to be a more temptingpath, one that is constitutionallybolder but politically less hazardous.Indeed, the “emergency stopgapmeasure” was so politically successfulthat it was extended into the next fis-cal year. When the Kansas legislatureagain failed to fully fund the court’sbudget request, the chief justicereported that the judicial branch“was urged by many legislators toextend the emergency surcharge,”though the legislature itself did nottake steps to authorize by statute orlegislate directly the new court fees.39

(The executive and legislature didaccept the court’s proposal to allowthe judiciary to submit its budgetrequests directly to the legislature.)

Kansas was hardly alone in its fiscalstruggles—state courts elsewherehave been facing similar pressures inrecent years. A special district judgein Oklahoma used his unofficial web-site to publicize the “Kansas ‘sur-charge’ solution” and urged hiscolleagues to follow McFarland’s “fis-cal leadership,” although the chiefjustice of the Oklahoma SupremeCourt declined to take such unilat-

33. Quoted in John Hanna, Chief Justice SaysTight Funding Will Mean Court Closings, AssociatedPress Newswires, February 7, 2002.

34. John Hanna, Panel Provides Money for CourtsNow but Only Sympathy after July 1, Associated PressNewswires, February 22, 2002.

35. John Hanna, Supreme Court’s Budget OrderAlters Balance of Power in Government, AssociatedPress Newswires, March 18, 2002.

36. John Hanna, Supreme Court Goes around Leg-islature to Solve Budget Problems, Associated PressNewswires, March 14, 2002.

37. John Hanna, Chief Justice Faces Retention afterDealing with Budget, Associated Press Newswires,September 4, 2002.

38. David Bresnick, Revenue Generation by theCourts, in Steven W. Hays and Cole Blease Gra-ham, Jr., eds., HANDBOOK OF COURT ADMINISTRA-TION AND MANAGEMENT 355-365 (New York: MarcelDecker, 1993); James W. Douglas and Roger E.Hartley, The Politics of Court Budgeting in the States:Is Judicial Independence Threatened by the BudgetaryProcess? 63 PUB. ADMIN. REV. 441, 450-451 (2003).

39. 2003 SC 51 (www.kscourts.org/sur-charg2004.pdf, last accessed February 8, 2004).

The inherent judicial powerdoctrine was developed to be adefensive weapon to protectjudges from subversion orobstruction by other officials.

continued on page 45

www.ajs.org JUDICATURE 45

eral action.40 Budget battles in Illi-nois led to an initial standoff, fol-lowed by more extended litigation,over judicial pay.41 State courts, oftenspared the budget ax in the past,have recently had to deal with signif-icant cuts; the events in Kansas couldeasily recur.42

The American system of separa-tion of powers runs the inherent riskof gridlock. While this is a danger, itcan also be regarded as a virtue. Bydenying any single branch of govern-ment the power to act unilaterally,this constitutional frameworkrequires government officials to winthe cooperation of others in order totake effective action.

The inherent judicial power doc-trine was developed to be a defensiveweapon to protect judges from sub-version or obstruction by other offi-cials. It has not traditionally beenused to place the courts on an inde-pendent financial footing or to shel-ter them from the regular budgetaryprocess. The rhetoric of judicial inde-pendence accompanying earlier usesof inherent judicial power harkenedback to a pure theory of separation ofpowers, in which each branch was leftfree to exercise its own functionswithout encroachment from the oth-

ers, but the judicial dependence onthe legislature for its financing was areflection of checks and balancesthat necessarily impinged on this sep-aration of powers.

The situation in Kansas can beplaced on a scale of possible budget-ary conflicts between courts and leg-islatures. The gravest fiscal threats tojudicial independence may comewhen governors and legislatures usebudgetary tools to attempt to influ-ence judicial decisions. The use ofinherent judicial powers as a safe-guard to judicial independence maybe most justified in such cases,which fortunately are rare. A lessextreme, but more common, threatto judicial independence arises fromthe competition for limitedresources. Chronic budget scarcity,such as arose in Kansas, may poseless of a threat to judicial independ-ence per se than to judicial effec-tiveness. In such situations, the useof inherent judicial powers may beharder to justify.

To the extent that such fiscal star-vation impinges on positive constitu-tional obligations that a statemaintain an effective system of jus-tice, school finance litigation mayprovide the more appropriate modelfor judicial action. When findingthat states have failed to providefunctioning educational systems asrequired by their constitutions,courts have mandated that legisla-tures fix the problem but have gen-erally avoided specifying the ultimatesolution. In that model, courts haveplayed an important role in holdinglegislators’ feet to the fire to meettheir constitutional responsibilities,but have left the problem of howbest to raise and distribute adequaterevenue to the legislature. Such aprocess tends to be slow and incre-

mental, but it arguably preserves therespective constitutional responsibil-ities of the various branches of gov-ernment while maintaininglegislative accountability for budget-ing. The requirement of a findingthat the states have actually violatedconstitutional provisions for main-taining a functioning judicial systemmay also set a higher and more pub-licly sustainable threshold for judi-cial action than does the reasonablenecessity standard of inherent judi-cial power cases such as Carroll.

The boldness of the rhetoricaccompanying traditional invocationsof inherent judicial power has beentempered sub silencio by the modestyof its practical claims and its effectivesubmission to the checks and bal-ances of the judicial hierarchy andstate political institutions. Althoughrelatively small in fiscal terms andunderstandable in a political context,the innovation in Kansas of using thepower to independently raise revenueto fund judicial expenses threatens toundo those historic checks on judicialpower. After the Illinois justicesordered the government to pay statejudges the salary increases that hadbeen vetoed by the governor, the statecomptroller remarked, “I wouldn’tsay that this is a constitutional crisis.But it is a constitutional clash.”43 Pre-cisely by avoiding an institutionalclash, the “Kansas solution” is all themore corrosive of the state’s vital con-stitutional balance. g

40. Oklahoma Family Law Information(www.pryorok.org/legal, accessed July 1, 2003,post later removed); Jurists Feeling the Pinch of Bud-get Cuts, Associated Press Newswires, February 2,2003.

41. Daniel C. Vock, High Court to Decide JudicialPay Raise Issue, Chi. Daily L. Bull., January 15,2004.

42. Budget battles also gave rise to the highlyunusual order by the Nevada Supreme Court thatthe legislature raise taxes under simple-majorityrule, despite a state constitutional requirement ofa two-thirds majority. Guinn v. Legislature, 71 P.3d1269 (Nev. 2003).

43. Monica Davey, Justices in Illinois OrderIncreases in Their Salaries, N.Y. Times, July 29, 2003,at A12.

G. GREGG WEBB is a student at Stanford Law School.

KEITH E. WHITTINGTON is an associate professor in theDepartment of Politics at PrincetonUniversity. (kewhitt@princeton.edu)

Webb, continued from page 19

Pace Law ReviewVolume 14Issue 1 Spring 1994 Article 3

4-1-1994

Wachtler v. Cuomo: The Limits of Inherent PowerHoward B. Glaser

This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace LawReview by an authorized administrator of DigitalCommons@Pace. For more information, please contact cpittson@law.pace.edu.

Recommended CitationHoward B. Glaser, Wachtler v. Cuomo: The Limits of Inherent Power, 14 Pace L. Rev. 111 (1994)Available at: http://digitalcommons.pace.edu/plr/vol14/iss1/3

http://digitalcommons.pace.edu/plrhttp://digitalcommons.pace.edu/plr/vol14http://digitalcommons.pace.edu/plr/vol14/iss1http://digitalcommons.pace.edu/plr/vol14/iss1/3mailto:cpittson@law.pace.edu

Wachtler v. Cuomo: The Limits ofInherent Power

Howard B. Glaser*

'We are faced with the paradox that litigation designed to solve aproblem makes its solution less likely."'

I. Introduction

On December 31, 1990, New York Governor Mario M.Cuomo entered the paneled chambers of the state Court of Ap-peals, where he began his legal career thirty years earlier as alaw clerk, and stepped-up to face Chief Judge Sol Wachtler. 2

The Governor and the Chief Judge were long-time friends andsome-time rivals: the Democratic Governor had appointed theRepublican jurist Chief Judge in 1985.3 Governor Cuomo hadasked Chief Judge Wachtler to preside over the ceremony mark-ing the Governor's third inauguration. As the Chief Judge ad-ministered the oath of office to the Governor, neither man couldanticipate that in the coming year they would face each otheragain in a New York courtroom, not to celebrate democracy, butto test it in the most severe constitutional crisis in New YorkState's history. The confrontation was spawned by New York'sgrim fiscal condition, when the Governor, four weeks after hisswearing in, announced unprecedented budget cutbacksthroughout state government, including the court system.4 TheChief Judge responded with a lawsuit, which asserted that thejudiciary had "inherent power" to compel the executive and leg-

* Affiliated with Hill & Barlow, Boston, Massachusetts. J.D., Harvard LawSchool, 1994; Special Assistant to Governor Mario M. Cuomo, 1986-1991.1. Federal district Judge Jack Weinstein on Cuomo v. Wachtler, No. 91-CV-3874, slip op. at 4 (E.D.N.Y. Oct. 7, 1991); see also Wachtler v. Cuomo, No. 6034/91 (Sup. Ct. Albany County filed Sept. 27, 1991) (settled Jan. 1992).

2. Sam H. Verhovek, Cuomo is Sworn in For 3rd Term Without Festivities,N.Y. TIMES, Jan. 1, 1991, at 31.

3. See David Margolick, The Making of a Chief Judge, N.Y. TIMES, Jan. 6,1985, § 4 (Week in Review), at 6.

4. See infra notes 96-101 and accompanying text.

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islative branches to fund the state court system at a judiciallymandated level of almost $1 billion.5

The doctrine of inherent powers is one which asserts thatthe very existence of the courts implies their authority to exer-cise powers reasonably necessary to the performance of judicialfunctions. 6 Though the doctrine has been employed by Ameri-can courts for various purposes since the beginning of the nine-teenth century, Wachtler v. CuoMo7 was significant in severalways. It marked the first substantial use of the doctrine by astate's highest court against an equal branch of government. 8

The budget at the center of the conflict approached $1 billion,dwarfing previous inherent power conflicts. 9 The lawsuit repre-sented an unprecedented application of inherent powers tolump-sum funding, as opposed to the discrete line-item expendi-tures at issue in prior cases.' 0 Due to the involvement of NewYork's Chief Judge and Governor, the case received wide mediacoverage." The controversy focused public attention on consti-tutional questions usually covered in the classroom or the court-room rather than by the newsroom.' 2

Although the legal issues in Wachtler v. Cuomo never cameto trial, the lawsuit and the controversy it created are worthanalyzing for the lessons they provide about the nature and lim-its of the inherent powers doctrine. It is particularly importantto consider the implications of Wachtler v. Cuomo at a timewhen state court budgets around the country are tightlysqueezed by fiscal pressures, tempting besieged judges and

5. See infra note 99 and accompanying text.6. For a collection of definitions appearing in case law and commentary, see

JOHN C. CRATSLEY, INHERENT POWERS OF THE COURTS 19 (1980). For a discussion ofthe conceptual basis of the doctrine, see infra notes 151-60 and accompanying text.

7. No. 6034/91 (Sup. Ct. Albany County filed Sept. 27, 1991) (settled Jan.1992).

8. See cases cited infra notes 14-26.9. See cases cited infra notes 14-26.10. See cases cited infra notes 14-26.11. Chief Judge Wachtler resigned in November, 1992. Chief Judge Resigns

Court, N.Y. TimEs, Nov. 11, 1992, at B1.12. See infra notes 90, 108, 124-25, 206-13 and accompanying text.

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court administrators into increased use of inherent powers toaddress chronic budget shortfalls.

13

The objective of this Article is to assess the viability of ap-plying the inherent powers doctrine in the context of a statebudget conflict. Centering on a case study of Wachtler v.Cuomo, this Article will place this exercise of inherent powersin historical perspective by analyzing the theoretical, preceden-tial, doctrinal, and political implications of the use of the doc-trine as a tool to compel funding for a state court system. PartII discusses the historic roots and gradual expansion of the in-herent powers doctrine. The judicially created doctrinal limita-tions imposed on the use of the expanding doctrine areintroduced in Part III. Part IV presents a detailed review of thepolitical, legal and fiscal developments surrounding JudgeWachtler's lawsuit. In Part V, Wachtler v. Cuomo is analyzed inlight of the legal, political, ,and conceptual justifications offeredfor the exercise of inherent power. Part VI concludes thatalthough the doctrine of inherent powers may retain its vitalityas a tool to protect politically vulnerable local courts from localgovernment incursions into the judicial sphere of power, Wach-tler v. Cuomo demonstrates that its expansion into the state-wide budget process is untenable.

II. The Historical Expansion of the Inherent

Powers Doctrine

A. Early Uses of the Doctrine

The courts have long recognized the use of inherent powersto assert judicial independence. The early applications of thedoctrine involved the courts' attempts to exercise control overcourthouse facilities and personnel, 14 and over the judicial pro-

13. See, e.g., John A. Clarke, Asserting the Courts' Independence, THE COURTMANAGER, Winter 1992, at 9-12; Malcolm M. Lucas, Is Inadequate Funding Threat-ening Our System of Justice?, 74 JUDicATURE 292 (1991).

14. See Scott v. Minnehaha County, 152 N.W. 699 (S.D. 1915) (preparation ofcourt calendars); State ex rel. Kitzmeyer v. Davis, 68 P. 689 (Nev. 1902) (court canorder new furniture and carpet); Board of Comm'rs v. Stout, 35 N.E. 683 (Ind.1893) (control of courthouse elevator belongs to court); State ex rel. S. Howard v.Smith, Auditor, 15 Mo. App. 412, 424 (1884) (power to appoint janitor); In reJanitor of Supreme Court, 35 Wis. 410 (1874) (power to appoint janitor); Mc-Calmont v. County of Allegheny, 29 Pa. 417 (1857) (ordering office space for courtclerk, ordering forms and stationery within inherent powers).

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cess itself, most notably through the power of contempt. 15 Fromthese limited beginnings, the use of the doctrine evolved to keeppace with new developments and challenges affecting the man-agement of the courts. During the 20th century, the courtshave frequently exercised the power to issue rules of practiceand procedure,' 6 rules governing the practice of law,17 rules ofcourtroom decorum,' 8 protective orders against the press,' 9 pro-visions for jury expenses, 20 and appointments of counsel forcriminal defendants.21 These exercises of inherent power werelargely limited to judicial housekeeping or to assert control overadjudicative proceedings and administration, posing neitherthreats to a coordinate branch nor any serious fiscal conse-quences. 22 None of these applications of inherent power wereparticularly objectionable on constitutional or political grounds.

15. See In re Cooper, 32 Vt. 253, 257 (1858). "The power to punish for con-tempt is inherent in the nature and constitution of a court. It is a power not de-rived from any statute but arising from necessity; implied, because it is necessaryto the existence of all the powers." Id. See also United States v. Hudson, 11 U.S. (7Cranch) 32, 34 (1812) (dictum). In Hudson, the Court commented that "inherentpowers are those which cannot be dispensed with in a court because they are nec-essary to the exercise of all others .... [O]ur courts no doubt possess powers notimmediately derived from statute .... " Id.

16. State v. Gary, 247 S.E.2d 420 (W. Va. 1978); Rose v. Palm Beach City, 361So. 2d 135 (Fla. 1978); People v. Jackson, 371 N.E.2d 602 (Ill. 1977); AlbermontPetroleum, Ltd. v. C.D. Cunningham, 9 Cal. Rptr. 45 (Ct. App. 1960); State ex rel.Conway v. Superior Court,- 131 P.2d 983 (Ariz. 1942); Kolkman v. People, 300 P.575 (1931); Walton v. Walton, 278 P. 780 (Colo. 1929).

17. Collins v. Godrey, 87 N.E.2d 838 (Mass. 1989); State Bar v. Guardian Ab-stract Title Co., 575 P.2d 943 (N.M. 1978); In re Manoual, 247 S.E.2d 230 (N.C.1977).

18. Illinois v. Allen, 397 U.S. 337 (1970).19. Rosato v. Superior Court, 124 Cal. Rptr. 427 (Ct. App. 1975), cert. denied,

427 U.S. 912 (1976); United States v. Schiavo, 504 F.2d 1 (3d Cir.), cert. denied,419 U.S. 1096 (1974); Younger v. Smith, 106 Cal. Rptr. 225 (Ct. App. 1973).

20. Rose v. Palm Beach City, 361 So. 2d 135 (Fla. 1978).21. Kovarik v. County of Banner, 224 N.W.2d 761 (Neb. 1975); People ex rel.

Conn v. Randolph, 219 N.E.2d 337 (Ill. 1966).22. See, e.g., O'Coins, Inc. v. Treasurer of Worcester, 287 N.E.2d 608, 611

(Mass. 1972) (Court's authority "is not limited to adjudication, but includes certainancillary functions, such as rulemaking and judicial administration, which are es-sential if the courts are to carry out their constitutional mandate."); see also Geof-frey Hazard, Jr. et al., Court Finance and Unitary Budgeting, 81 YALE L.J. 1286,1288 (1972) ("Most of the reported decisions have involved marginal appropria-tions for ancillary personnel and facilities rather than basic fiscal under-writing.").

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B. Modern Expansion of the Doctrine to Court Funding

During the last thirty years, the doctrine has been ex-tended into areas of more significant fiscal consequence, andthe conflict between the branches has sharpened. The typicalmodern dispute has involved the power of the courts to fill sup-port positions and to compel the local legislature to fund themat adequate salaries. 23 The rhetoric of the cases justified theseexercises of inherent power as necessary to preserve the inde-pendence of the judicial branch. The judiciary, observed onecourt, "is the only branch excluded from participation in the for-mulation and adoption of the government budget. Such exclu-sion makes the courts vulnerable to improper checks in theform of reward or retaliation."24 Thus, the judiciary must "beable to ensure its own survival when insufficient funds are pro-vided by other branches."

25

The application of the doctrine in these cases was not asbroad as its language suggests. The actual court orders com-pelled funding for fairly small, discrete, line-item expendituressuch as salaries and equipment. 26 Notwithstanding the dicta,the doctrine was not being used as a basic budget mechanism inthis line of cases. Furthermore, in virtually every reported casesince the 19th century the doctrine was being asserted by astate court against a local government body. The interbranchconflict was played out between a superior and inferior divisionof government, and did not represent the confrontation betweenequals as was implied by the expansive verbiage of the opinions.

23. See, e.g., Judges for the Third Judicial Circuit v. County of Wayne, 172N.W.2d 436 (Mich. 1969) (power to set salaries of a group of probation officers andlaw clerks), modified on reh'g, 190 N.W.2d 228 (Mich. 1971), cert. denied, 405 U.S.923 (1972) (power to set salaries of a group of probation officers and law clerks);Smith v. Miller, 384 P.2d 738 (Colo. 1963) (judicial authority to set salaries of courtclerks); Noble County Council v. State, 125 N.E.2d 709 (Ind. 1955) (power to ap-point probation officer).

24. In re Salary of the Juvenile Director, 552 P.2d 163, 170 (Wash. 1976).25. Id. at 171; see also Smith, 384 P.2d at 741 ("It is abhorrent to the princi-

ples of our legal system and to our form of government that courts, being a coordi-nate department of government should be compelled to depend upon the vagariesof an extrinsic will." (quoting conclusion of trial court)).

26. Juvenile Director, 552 P.2d 163 (Wash. 1976) ($125 per month increase insalary for director of juvenile services); O'Coins, Inc. v. City of Worcester, 287N.E.2d 608 (Mass. 1972) ($86 for tape recorder and tapes); State ex rel. Reynoldsv. County Court, 105 N.W.2d 876 (Wis. 1960) ($250 for an air conditioner).

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C. The Outer Bounds of the Doctrine: Commonwealth ex rel.Carroll v. Tate

The furthest expansion of the doctrine occurred in Com-monwealth ex rel. Carroll v. Tate.27 The dispute in Tate con-cerned the 1970-71 budget request submitted by thePhiladelphia Court of Common Pleas. The Mayor trimmed anumber of items from the $19.7 million request, reducing it to$16.5 million, and the city council approved the reducedamount.28 The court sought mandamus to compel the paymentof the additional funds.29 The Pennsylvania Supreme Court, inaffirming (with modifications) a lower court opinion orderingrestoration of approximately $2.5 million to the budget, arguedthat fiscal autonomy was a requisite for judicial independence:

[T]he Judiciary must possess the inherent power to determineand compel payment of those sums of money which are reasonableand necessary to carry out its mandated responsibilities, and itspowers and duties to administer Justice, if it is to be in reality aco-equal, independent Branch of our Government.30

In determining whether the exercise of inherent power to com-pel funding was justified, the court rejected consideration of thefiscal condition of the locality as a factor.

31

Tate was significant for two reasons. First, it marked anexpansion of the inherent powers doctrine into broader fiscalmatters than in previous cases. Substantial budget items for anentire municipal court system were in dispute, rather than theisolated expenditures of a particular judge, which had typifiedprior inherent powers cases. Second, the traditional exercisesof inherent power served to protect the institutional control ofthe court, but not at the expense of a coordinate branch.Although some of the earlier cases required specific outlays, theexpenditure of a few dollars for a janitor or court stenographerdid not seriously impinge upon the institutional taxing or

27. 274 A.2d 193 (Pa.), cert. denied, 402 U.S. 974 (1971).28. Id. at 195.29. Id. at 193; see also Comment, State Court Assertion of Power to Determine

and Demand Its Own Budget, 120 U. PA. L. REv. 1187 (1972) for a discussion of thecase.

30. Carroll, 274 A.2d at 197.31. Id. at 199.

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spending power of the legislative or executive branches.32 Bycontrast, Tate's decision to allocate a significant amount of pub-lic resources to the courts went to the heart of the city council'sinstitutional power. Thus, Tate marked the first "offensive" useof inherent power; its exercise preserved the status of the courtsby diminishing the power of the legislature.

In spite of the distinctions, there were two fundamentalways in which Tate was consistent with prior and subsequentinherent powers case law which arguably made this "offensive"use acceptable. First, as in virtually every other inherent pow-ers case, the ultimate confrontation in Tate occurred not be-tween coequal partners in state government, but between astate supreme court and a local government unit.33 Tate andthe inherent powers case law should thus be viewed as a powerstruggle between state and local government, rather than as atrue separation of powers conflict.

3 4

Second, the offense in Tate, which spurred the use of inher-ent powers, was that the legislature had eliminated specific ex-penditure items from the court's budget. The gravamen of Tateand its progeny was judicial resentment at being told how tospend the courts' money, rather than discontent over how muchtotal spending was to be allocated.

III. Controlling the Expansion of Inherent Powers: JudicialLimitations and the Growth of State Financing

In the wake of Tate, commentators predicted (with varyingdegrees of approval) that courts, which had traditionally beenmore of a spectator than a player, had found a tool by whichthey could circumvent the budget process.35 At a time of in-

32. See Hazard et al., supra note 22, at 1288, for a discussion of this point.33. See cases cited supra notes 14-26 and accompanying text.34. See Hazard et al., supra note 22, at 1288.35. See Hazard et al., supra note 22; Note, The Courts' Inherent Power to Com-

pel Legislative Funding of Judicial Functions, 81 MICH. L. Rxv. 1687 (1983); JohnC. Taggart, Note, Judicial Power - The Inherent Power of the Courts to CompelFunding for Their Own Needs - In Re Juvenile Director, 87 Wn.2d [sic] 232, 552P.2d 163 (1976), 53 WASH. L. Rxv. 331 (1978); John F. Burke, The Inherent Powerof the Courts, 57 JUDICATURE 247 (1974); William S. Ferguson, Judicial FinancialAutonomy and Inherent Power, 57 CORNELL L. REv. 975 (1972); James T. Brennan,Judicial Fiscal Independence, 23 U. FLA. L. REv. 277 (1971); Jim R. Carrigan, In-herent Powers and Finance, 7 TRUAL 22 (NovJDec. 1971).

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creasing fiscal difficulties for municipalities around the country,the use of inherent powers as a negotiating instrument or legalweapon could prove to be a tempting way to address chronic,broad-based budget problems. However, until Wachtler v.Cuomo, inherent powers disputes actually remained confined todiscrete budget items rather than to broad budget-making; andto state-local government conflicts rather than to primal clashesbetween coequal branches at the state level.

There are several reasons why it took twenty years beforethere was an attempt to expand the doctrine to the next level.First, as the post-Tate case law developed and top-level courtadministrators reacted to Tate, the courts placed a series of self-imposed limitations on the exercise of inherent powers. 36 Thesedoctrinal limits include a requirement of prior approval, thestandard of reasonable necessity, the exhaustion of establishedprocedures, and, in some cases, appointment of an outsidejudge.37 As state supreme courts recognized ever broader appli-cations of the doctrine, they sought to impose these limits as ameans by which to regulate the exercise of inherent power bythe lower courts.38 Second, the development of unitary financ-ing and lump-sum budgeting reduced the opportunities for in-herent powers conflicts at the local level. 39

A. Judicially Imposed Doctrinal Limitations on InherentPowers

1. The Requirement of Prior Approval

An important limitation imposed on a court seeking to exer-cise its inherent power is the prior approval of either a statecourt administrator, or the supreme court itself, as a prerequi-site to the exercise. Several states have embodied this require-ment in an administrative order or court rule.40

36. See infra notes 40-48 and accompanying text.37. Id.38. Id.39. See infra notes 49-55 and accompanying text.40. See, e.g., MASS. SuP. JD. CT. R. 1:05 (requiring approval of chief judge);

MICH. SuP. CT. ADMIN. ORDER no. 1971-6, 386 Mich. xxix (1971) ("[N]o judge of asubordinate court may ... order the expenditure of public funds for any judiciallyrequired purpose until such judge has submitted his proposed writ or order to theconstitutional office of Court Administrator, and has obtained due approval .. ").

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Prior approval has two important consequences. First, itgives the state supreme court ultimate control over the exerciseof inherent powers. Second, the approval requirement helps fa-cilitate solutions between the court units and the local legisla-tive units by placing the state court administrator in a positionto mediate the dispute outside of the judicial process. 41 Remov-ing the dispute from the heated arena of local politics helps coolthe passions that might otherwise lead to an injudicious use ofthe expanded doctrine.

2. The Reasonable and Necessary Standard

The second doctrinal requirement is that the fundingsought should be "reasonably necessary" to the functioning ofthe court. 42 This vague, verbal formula is subject to manipula-tion and is incapable of a precise definition.43 Despite its draw-backs, this formula functioned as a minimum, uniformguideline for budget development. Local judges and legislatorsbrought ad hoc standards and varying degrees of skill to thebudget making process; the decentralization of the budget pro-cess simply did not lend itself to expert budget development. Byimposing the "reasonable and necessary" standard, the supremecourts created a makeshift surrogate for the uniform standardsof a centralized finance system.44

A related purpose of the standard was to force the courtseeking to exercise inherent powers to document its needs inorder to add credibility to its action and reduce the chance that

41. See CRATSLEY, supra note 6, at 8 (citing CARL BARR, JUDICIAL AcTmvsM INSTATE COURTS: THE INHERENT PowERs DOCTRINE).

42. Commonwealth ex rel. Carroll v. Tate, 274 A.2d 193, 199 (Pa. 1971), cert.denied, 402 U.S. 974 (1971) (A court's "wants and needs must be proved by it to bereasonably necessary for its proper functioning and administration.").

43. Clerk of Court's Compensation v. Lyon County Comm'rs, 241 N.W.2d 781,782 (Minn. 1976) ("The test is not relative needs or judicial wants, but practicalnecessity in performing judicial functions."); In re Salary of the Juvenile Director,552 P.2d 163, 174 (Wash. 1976) (setting a strict standard of "clear, cogent, andconvincing proof' to show reasonable necessity).

44. It is clear from the inclusion in supreme court administrative rules of thereasonable and necessary standard that the standard was aimed at imposing someuniformity on local court budget activity. See infra note 53 and accompanying text.The concern over inconsistent local approaches to court budget policies has beenone of the driving forces behind court unification. See generally NATL INST. OFJUSTICE RESEARCH REPORT, STRUCTURING JUSTICE: THE IMPLICATIONS OF COURT

UNIFICATION REFORMS (1984).

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the exercise of inherent powers would be viewed as arbitrary.45

Although the cases rarely acknowledge that the exercise of in-herent powers may implicate public trust in the judiciary, the"reasonably necessary" requirement seems motivated in part bysuch considerations.

46

3. The Requirement of Administrative Exhaustion

One of the most basic of the court-imposed limits is the re-quirement that inherent powers may only be used when estab-lished means for fulfilling a court's needs have failed. 47

Therefore, invoking inherent powers is an act of last resort.Courts must, at a minimum, follow prescribed procedures forlegislative approval of budget items and cannot simply substi-tute inherent powers for the normal legislative budget process.

4. Appointment of an Outside Judge

The appearance of judicial impartiality is threatened whenthe judge who issues a funding order under the mantle of inher-ent powers then reviews his own order in a subsequent legalaction. As a result, courts will sometimes require that a judgewho is unaffected by the inherent powers order hear the chal-lenge to the order.48

B. The Growth of Modern Finance Mechanisms

Several nonjudicial developments have also affected theuse of inherent powers. First, with the advent of the modernexpansion of inherent powers that limited the budgetary discre-tion of local governments, localities began to support state take-

45. See Juvenile Director, 552 P.2d at 174 (discussing the proper standard).In that case, the court stated that "it is incumbent upon the courts, when theymust use their inherent power to compel funding, to do so in a manner whichclearly communicates and demonstrates to the public the grounds for the court'saction." Id.

46. Id.47. See, e.g., Clerk of Court's Compensation v. Lyon County Comm'rs, 241

N.W.2d 781 (Minn. 1976) (inherent power could not be exercised to establishclerk's salary where clerk failed to appeal figure set by county as required); Leahyv. Farrell, 66 A.2d 577 (Pa. 1949) (inherent power not justified where lower courtfailed to submit salary increase to county board as required by statute); Hillis v.Sullivan, 137 P. 932 (Mont. 1913).

48. See, e.g., McCorkle v. Judges of Chatham County, 392 S.E.2d 707, 709(Ga. 1990).

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overs of court financing. 49 As the use of unitary budgetingexpanded, the battleground for local, inherent powers disputescontracted. 50 In addition, the introduction of lump-sum budget-ing gave judges and court administrators greater flexibility increating and managing their budgets. Under lump-sum budget-ing, there is no longer a need for a judge to go hat in hand to alegislative body for a tape recorder 5' or an air-conditioner.

52

C. The Implications of Centralizing Financing and StateSupreme Court Control of the Doctrine: Setting theStage for Wachtler v. Cuomo

Taken together, the court-imposed limitations and thebudget innovations have largely removed inherent powers dis-putes from the province of local government and have en-couraged reconciliation of conflicts. As this process progressed,some commentators predicted that inherent powers would be-come less important as a budgeting tool for the courts. 53 A fewobservers recognized that the removal of the budgeting processto the state level and the assumption by the state's highestcourts of the role of guardian of the inherent power may haveraised the stakes of an inherent powers conflict even while re-ducing the incidence of disputes."

49. See CRATSLEY, supra note 6, at 3 (discussing Carl Barr, Judicial Activismin State Courts: The Inherent Powers Doctrine, in STATE SUPREME COURTS: POLICY-MAKERS IN THE FEDERAL SYSTEM, 129 (Mary C. Porter & G. Alan Tarr eds., 1982)).

50. In New York State, for example, the 1962 consolidation of the court sys-tem meant that the local courts were no longer dependent on the 62 county govern-ments, thus reducing a significant number of potential fiscal flash points - or atleast shifting the battleground to the state level. See infra notes 54, 184 and ac-companying text.

51. O'Coins, Inc. v. Treasurer of Worcester, 287 N.E.2d 608 (Mass. 1972).52. State ex rel. Reynolds v. County Court, 105 N.W.2d 876 (Wis. 1960).53. See, e.g., Barr, supra note 49, at 146.54. A group of prescient commentators who recognized the implications of

these events was Geoffrey Hazard and his co-authors, who wrote 20 years beforeWachtler v. Cuomo that:

a remote danger in unitary budgeting, but one which cannot be ignored, isthat the judicial system will take the inherent powers doctrine seriously andtry to secure its appropriation by mandamus. At this level the legislaturewould find its vital interests and prerogatives threatened .... [T]he ulti-mate outcome of such a conflict is impossible to predict but certainly itwould discredit both branches of government and embarrass judicial financ-ing for some time.

Hazard et al., supra note 22, at 1300.

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Prior to Wachtler v. Cuomo, there were no significant inher-ent power conflicts between coequal state branches of govern-ment.55 As the fiscal problems of the cities during the 1960sand 1970s (which spawned the modern expansion of the inher-ent powers doctrine) became the burden of the states in the1980s, the locus of inherent power conflicts shifted. With boththe budget process and control of inherent, powers residing atthe state level, an attempt to expand the doctrine beyond itsprevious bounds in a direct confrontation between constitution-ally equal branches of state government was inevitable.

IV. Wachtler v. Cuomo: A Chronicle of Constitutional Crisis

A. Judicial Funding and the New York Budget Process

The majority of states treat the judicial branch like anyother state agency in the preparation of the budget:56 judiciarybudget requests are submitted to executive budget officials whoreview and revise the requests, and incorporate the revised re-quests into the final budget submitted to the legislature. 57 Theremaining states either permit the judiciary to submit itsbudget request directly to the legislature, or require the judici-ary to submit its request to the executive branch, which mustthen transmit the request to the legislature without revisionbut subject to the recommendations of the executive. 58 NewYork follows the latter procedure in which the executive acts asa "conduit" for the judicial budget request; New York is fairlyunusual in that the conduit procedure is mandated by a consti-

55. There were several cases involving insignificant sums, none of which pre-cipitated any head-to-head conflict between the branches over fundamental pow-ers. See In re Appointment of Clerk of Court of Appeals, 297 S.W.2d 764 (Ky. 1957)(power to appoint clerk); State ex rel. Cunningham, 101 P. 962 (Mont. 1909) (powerto set stenographer's salary); State ex rel. Kitzmeyer v. Davis, 68 P. 689, 690 (Nev.1902) (power to order new furniture and carpet for supreme court); In re Janitor ofSupreme Court, 35 Wis. 410 (1874).

In 1978, the West Virginia Legislature decreased funding for the judicialbudget several times. The Supreme Court of Appeals ordered the full budget rein-stated. The case did not involve inherent powers; it turned on a constitutionalprovision prohibiting the legislature from decreasing judicial budget items. Stateex rel. Bagley v. Blankenship, 246 S.E.2d 99 (W. Va. 1978).

56. CARL BARR, SEPARATE BUT SUBSERVIENT: COURT BUDGETING IN THE AMERI-cAN STATES 25 (1975).

57. Id.58. Id. at 29.

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tutional provision. 59 The constitution further provides that thelegislature may strike, reduce, or add items to the judiciarybudget request subject to the veto of the Governor.

60

Pursuant to its constitutional powers, the New York StateLegislature had in fact consistently, reduced the judiciary re-quest in each of the fiscal years from 1982-1990 by between $10and $50 million, even while the actual level of appropriationsrose by over $400 million. 61 The Governor's acquiescence inthese reductions in the judiciary budget request became an in-creasing source of tension between the Chief Judge and theGovernor to the point that observers looked to "their annualsquabble over the state judiciary budget" as a way to "enlivenAlbany's dreary year end political scene."

62

In 1982, the year Cuomo took office, the appropriation forthe judiciary was $480.1 million. This figure increased by $415million or 86% during the following nine fiscal years.6 3 Yet, thejudiciary still found its resources stretched with these increasesfalling an average of 4% short of its own budget requests.64

Since 1985, the year when "crack cocaine" first began to appearin New York, the number of felony indictments and superiorcourt informations in Supreme and County Courts statewide in-creased by 57%.65 Felony filings in the criminal terms of NewYork County supreme courts increased by 73%.66 Municipal

59. N.Y. CONST. art. VII, § 1 provides that:

Itemized estimates of the financial needs of the legislature, certified by thepresiding officer of each house, and of the judiciary, approved by the court ofappeals and certified by the chief judge of the court of appeals, shall betransmitted to the Governor not later than the first day of December in eachyear for inclusion in the budget without revision but with such recommen-dations as he may deem proper. Copies of the itemized estimates of the fi-nancial needs of the judiciary also shall forthwith be transmitted to theappropriate committees of the legislature.

Id.60. Id. § 4.61. Wachtler v. Cuomo, No. 6034/91 (Sup. Ct. Albany County 1991 filed Sept.

27, 1991).62. Elizabeth Kolbert, Cuomo at Odds with Top Judge on Budget Plea, N.Y.

TIMEs, Dec. 8, 1989, at B3.63. Wachtler, at 12.64. Id.65. Id. at 14.66. Id.

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courts around the state were experiencing similar increases. 67

New York City Criminal Court calendars commonly contained250 cases daily, as approximately 330,000 cases were filed in1989.68 Noncriminal cases also surged during the late 1980s,including a 223% increase in family court cases in New YorkCity, and civil filings increasing 25%.69 As caseloads roseswiftly, judicial staffing resources increased only minimally,and nonjudicial personnel remained understaffed, particularlyin the trial courts where 850 positions remained unfilled due tobudget constraints entering the 1991-92 fiscal year.70 The ChiefJudge had repeatedly pressed the legislature and the Governorfor more money over the years, characterizing court funding asa "bones and sinew budget,"71 and privately complaining of cav-alier treatment by the Governor.7 2 The resulting backlogs anddelays set the stage as the Office of Court Administration beganplanning for the 1991-92 budget process in the fall of 1990.

B. The 1991-92 Executive Budget Proposal

On December 1, 1990, the Chief Judge transmitted to theGovernor and legislature a judiciary budget request for $966.4million, an increase of $70 million, or 8% over the previousyear's appropriation.7 3 The Governor incorporated this requestin his Executive Budget without revision on January 31st7 4 andincluded the entire request within the appropriations bill sub-mitted to the legislature.7 5 However, in the Governor's finan-cial plan, which contained the Governor's recommended levelsof expenditures and revenues, the Governor recommended a re-duction of 10% from the judiciary's request, resulting in a $25

67. Id.68. Id.69. Id. at 15.70. Id. at 13.71. William Glaberson, Cuomo Urged to Increase Court Budget, N.Y. TnMms,

Jan. 29, 1990, at B1.72. Frank Lynn, Cuomo's Fiscal Battle With Judge Pits Dollars and Dignity,

N.Y. TmEs, Mar. 19, 1990, at B3.73. Wachtler, at 7, 13.74. 1991-92 N.Y.S. Executive Budget at 555-83.75. S. 1751, A. 3051; Wachtler, at 12.

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million (2.8%) proposed reduction from the previous year'sappropriation.

76

The Governor's 2.8% proposed reduction in the judiciarybudget was in line with other spending cuts compelled by whatthe Governor characterized as the state's worst financial crisissince the Great Depression. 77 The 1991-92 Executive Budgetanticipated a $6 billion gap between revenue forecasts andspending projections. 78 The $29.15 billion state spending planincluded proposals for the largest spending cuts and tax in-creases in the state's history. 79 The cuts went to the heart ofsome of the state's most powerful political constituencies. Gov-ernor Cuomo acknowledged that the budget would generate "alot of complaining and a lot of screaming" from interest groupsbut insisted that the state's basic strengths would remain in-tact. 0 One of the first to respond was Chief Judge Wachtler,who warned the Governor that "what you recommend will notleave this state strong-it will leave it vulnerable in a very fun-damental way."81

C. The Chief Judge Drops a Bombshell

Although the New York State Constitution imposes anApril 1 deadline for the approval of the state budget, the fiscalcrisis of the late 1980s complicated negotiations between theGovernor and legislature over spending cuts and revenue in-creases, resulting in a series of missed budget deadlines.8 2 Bythe time the April 1 deadline had passed in 1991, negotiatorsstill had not resolved major budget issues.

76. Wachtler, at 11. This distinction between the Executive Budget and finan-cial plan would later form one focal point of the confrontation and intertwine withthe inherent powers arguments.

77. Sam H. Verhovek, Cuomo Proposing Steep Budget Cuts and Tax Increases,N.Y. TimEs, Feb. 1, 1991, at Al.

78. Id.79. Including a $1 billion cut in school aid, a 50% cut in aid to localities, the

abolishment of dozens of state agencies, the elimination of 18,000 state jobs (10%of the work force), a $400 million loss in aid to New York City, and a host of newtaxes, including a 50% increase in tuition at state and city universities. Id.

80. Id.81. Id.82. Sarah Lyall, Budget in Albany is Political Pact, N.Y. TIMEs, Apr. 2, 1993,

at B1.

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The question of the judiciary budget remained a back-ground issue until mid-April when Chief Judge Wachtler, in aManhattan speech, dropped his first bombshell. Noting thatthe Governor had failed to include the judiciary's own budgetestimate in his financial plan, the Chief Judge announced, "[a]sfar as I'm concerned, that's an unconstitutional budget."8 3 Byincluding a revised estimate in the financial plan, the ChiefJudge charged that the Governor was not just "fiddling with thefinancial plan - he's fiddling with the Constitution."8 4 TheChief Judge noted that several other court systems had success-fully sued their states to force them to fully finance the judici-ary,85 which was the first indication that he thought theGovernor's actions might come within the inherent powersdoctrine.

Off the record, judiciary officials were "hinting darkly"about lawsuits.8 6 Governor Cuomo remained unperturbed bythe Chief Judge's remarks. "I have no doubts as to [thebudget's] constitutionality despite the Chief Judge's opinions,"the Governor, who takes pride in his own legal acumen, told theNew York Times.87 Seizing on a theme that would recurthroughout the confrontation, the Governor tried to cast theChief Judge as the voice of just one more special interest groupvying for a bigger slice of a shrinking budget pie. "He's like allthe other people who speak in their political capacity. He's try-ing to get as much as he can for his particular segment."

88

The Chief Judge's approach was met with an equally coolreception in the legislature, where the Chair of the AssemblyJudiciary Committee dismissed the constitutional accusationsas a "s