Strategically placed in one of the halls of the building housing The Administrative Office of the Courts in Annapolis is the “Office of Problem-Solving Courts.” This space and the sign over it are the clearest evidence of the partially modified mission of the Judiciary of the State of Maryland. That change has occurred mostly in the last 15-20 years although the effort to bring it about began much earlier.
The change I am describing has most dramatically revealed itself in the development of the Family Divisions of the circuit courts of our state. However it has also manifested itself in proposals to establish and in some cases the actual creation of specialized “Problem- Solving Courts.” These specialized courts have included “Drug Courts”, “Mental Health Courts”, and “The Business and Technology Case Management Program.” We have also seen proposals for “Auto Theft Courts,” specialized Domestic Violence Court Systems and even “Health Courts.”
The changed or more accurately stated enhanced vision of the leadership of The Maryland Judiciary and the modified mission of the Judicial Branch of government to go with it is that courts and their presiding officers, the Judges, shall in some instances become. “Problem solvers” for the parties in the law suits and cases brought before them in their courtrooms. This very different role contrasts dramatically with the more traditional and limited role of a Judge as a Dispute Resolution Officer.
This change has largely taken place right below the radar of most lawyers as well as the general public. Most lawyers as well as the public have either not noticed or noticed and ignored the change because they were too busy trying to make a living to pay attention and only a small part of this change was perceived to affect their livelihood. Even the media including professional Journals have not focused on the trend apparently concluding that the stark change in the role of the judges which is occurring is not important enough to merit their attention.
The result has been almost a total institutional deference except by a small and comparatively insignificant segment of the Bench, who are directly affected in a manner they feel the need to resist. This deference is to the increasingly specialized segments of the Bar practicing in certain areas, their clients, and increasingly the larger and larger population of “self-represented” parties roaming our courthouses, whose advocacy for “reform” of the “system” effectively blunts the opposition composed of a shrinking minority of more senior Judges who object to the change in their job descriptions.
The “reforms” which these advocates have already won in many cases and are in the process of achieving in many more include the creation of the “specialized courts” mentioned earlier which are designed and structured operationally to more efficiently serve the specialized practices of the lawyer advocates for these courts as well as their clients. These specialized courts, divisions, and case management programs are also responsive to those self –represented parties whose common needs and interests arguably have historically not been well served by the Judiciary. Those needs and interests are well beyond simply having their disputes resolved more efficiently and with greater sensitivity. They are multi-disciplinary in nature and in many cases have not been a part of the traditional training of a judge and the professional staffs that courts are increasingly employing to assist them. In short, “solving people’s problems” is not what judges have been trained to do and as a result of that are always considerably more cumbersome and in many instances complex than resolving their disputes.
So why are we creating expectations among our citizens that going to court will “solve their problems”? Good question! Perhaps it is because the current generation of judicial leaders are in many instances “products of the 60’s” and believe that government including the judicial branch, which has traditionally and arguably constitutionally, the most limited role of the three branches of government and for that reason is “the least powerful branch of government,” can and should notwithstanding that be a positive and active force in all of our citizens’ lives. Or maybe it is because the current leaders of the judiciary are “Pragmatists” and want government including the judiciary to do “what works” even if the founders’ vision clearly didn’t encompass “Problem –Solving Courts” providing psychiatric and psychological counseling , economic cost/ benefit, analysis as well as drug an alcohol treatment to litigants and their families in order to not only resolve their disputes but also to address the underlying environmental, biological, sociological, economic, and cultural causes of those disputes and their “problems.”
The debate is pretty much over even though there remain pockets of resistance and criticism. The leadership of the judiciary with the support of the other two branches of government and a consensus between them is in the business of implementing the visions of “Problem- Solving Courts.”
What effect is this having on who seeks and attains Judicial Office? What effect will it have on the expectations of our citizens who litigate and go to court based on the judiciary’s implicit promise to solve their problems? How will it affect the character and temperament of the men and women whom we appoint and elect to judicial office? Will future judges run on a platform based on who can best “solve our citizen’s problems?” What background will we look for in a judge? What are the unintended consequences of the change in the stated mission and function of the Judicial Branch of government? Stay tuned.