All of You: Time to Pester Your Elected Representatives

Those of you who've followed this blog for more than a post or two have long since tired of my, and others' yelling about the fact that trial courts, and particularly family law trial courts, have been getting a raw deal in terms of funding.  Now, it's official.

Kentucky Nixes Arbitration in Family Law, As, Among Other Things, Classist?

The Kentucky Court of Appeals has held that an agreement to submit all or a portion of a family law dispute to binding arbitration, without independent review by a sitting "real" judge, is an impermissible delegation of the court's power.

Among the more notable comments the court made, however, was the following, made without any citation of further authority:

Notwithstanding that the parties agreed to pay the arbitrator fees, what is most distressing about this scenario is that arbitration is obviously not a viable alternative or available to parties with lower incomes who can not afford to pay an arbitrator the sum of $225 per hour. This effectively creates a class system within Jefferson Family Court proceedings where more affluent individuals have the opportunity to pay for a “private judge” to conduct their proceedings – while
parties of lesser means and income must have their case heard by constitutionally elected judges in perhaps a less expeditious time frame.

Regardless of how noble the intent of utilizing arbitration in divorce proceedings, such a system that permits affluent individuals the opportunity to expedite the disposition of their domestic
relations cases in family court that is otherwise unavailable or cost prohibitive to persons of lesser incomes, appears to be both unconscionable and unconstitutional on its face, in our opinion.

Now I know, from reading the rest of the opinion, that commercial arbitration is permissible in Kentucky, and I'll bet that, whether they know it or not, Kentucky bank customers, HMO patients, customers of real estate brokers, and lots of other folks have entered into arbitration agreements regarding the services of those providers, just like their California cousins.

I also know that there are a significant number of folks in Kentucky who end up going to family court without a lawyer, because they can't afford to hire a lawyer. I'll also guess that in general, they don't do as good a job in presenting their cases as attorneys would have done for them.

So, seems to me, there's a "class system" in place already. It also seems to me that if litigant couples have the resources and the mutual willingness to take their cases "out of the system" to an arbitrator, mediator, psychologist, clergyperson, or even a guy who'll adjudicate their dispute using a Ouija Board, this actually works to free up scarce judicial system resources for everyone else.

Am I missing something?

A tip of the big grey fedora to Diana L. Skaggs of Kentucky for the pointer.

Now They're Chopping Down The Totem Pole We're the Low Guy On...

In the wake of the vote-down of the Governor's various last-ditch "budget-rescue" bills, the Los Angeles Superior Court has announced that they will be closing all courtrooms one Wednesday per month, commencing in July, and continuing for the next fiscal year.

This is, in a word, not likely to improve the functioning of the family court system, and not likely to make it more responsive to the needs of the public.

As I've noted in these pages earlier, the system is already working short-handed and short-budgeted.

This change will mean that family law court calendars will be, on average, five percent longer, or one or two extra cases, per day, per judge. That may not seem like much, until you consider that family law judges are often already hearing fifteen to twenty cases per day. Assuming a judge is on the bench hearing testimony, or calling calendar, six hours per day (the rest of the time is to READ the reams of stuff) that's a total of 24 minutes per hearing per case. . . . whether or not anyone involved in the matter speaks English, or has brought along a real interpreter. . . . . .and whether or not anyone can coherently explain why they're in court, or what they want the court to do about it...

It means that the time before someone can get into court to address what they, at least, regard as important issues (where their kids stay, with whom; who pays to feed the kids; who stays in the house, when there's been domestic violence etc.) will be on average, five percent longer (custody hearings are already being set two months plus from the date of filing, with support hearings often following along with that delay).

It means, unfortunately, that the job of being a family law judicial officer, already generally recognized as a high-burnout judicial assignment, will be regarded as even less of a "plum", and even more of a "lemon".

Sorry, Folks, You'll Just Have To Stay Married... Pt. I.

As the State Legislature finishes up a three-day weekend of not-entirely-successful budget negotiation, I'll be interested to see if just possibly, those who are taking a "no new taxes, ever!" stand really want to bring some of the operations of civil government to a grinding halt, or at least are willing to try and play an increasingly ugly game of "chicken".

The civil justice system in California is teetering, and they may give it a push (Anyone notice that last year, one California county stopped civil trials completely for months, because of the criminal case backlog, until they got a task-force of judges from elsewhere to come in and clean up?) If we essentially close down the system of civil justice for most folks, (and family law is the part that the most folks use) we've pretty much abandoned one of the two roles of state government which have previously distinguished this country and state from others far less fortunate. (The other big hole in the fabric of civil government has been, and will probably continues to be, the final evisceration of what was, once long ago the best system of public education in the country.)

California law still requires any pair of parents with a child custody dispute to go and talk to a court-employed mediator to try and resolve the issue, before presenting the issue to a judge to decide.

In the heyday of this system, pairs of parents could expect to set their hearing, walk into the mediation office, and be seen that morning. My best recollection of the statistics is that Los Angeles County's mediation staff had about a 70/80% success rate in getting these folks to resolve at least some of their issues. If a pair of parents had a case pending, they could even get a mediation appointment without setting a hearing, and sometimes avoid the expense of setting it.

Unfortunately, the budget for this hasn't come close to keeping up with the population increase. Couples can no longer get a mediation appointment unless they've actually set a hearing, and are required to set a mediation appointment whenever setting a hearing on custody issues, so that mediation can happen before the hearing. The backlog of mediations is now so deep that, depending where in the County someone is looking, the earliest available appointment may be six to ten weeks out.

That means that if a family's falling apart, and they need to get issues resolved, they're looking at two months' wait. Unless they've got enough resources and knowledge so that they can set another hearing on financial issues separately from the hearing on custody issues, they'll be deferring the hearing on financial issues as well. That'd be the hearing originally intended to "preserve the status quo".

Times are tight, people are stressed, and their patience may be a little frayed. What, exactly are parents in inolerable family situations supposed to do? "Suck it up"? Take matters into their own hands? If someone needs to be told to provide financial support for their children, are those children supposed to survive for two months on IOU's? (Some people really don't get it, until they're told. By someone in a black robe with a bailiff nearby. Some don't get it even then...)

We're still running on the tail-end of last year's budget. The coming one will, I expect, only be grimmer. Stay tuned....