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Policy Changes Can Send Shockwaves Through the Courthouse

by Kurt Schlauch / September 1, 2023

“Stroke of the pen. Law of the Land. Kinda cool.” That’s how Paul Begala, advisor to President Bill Clinton in the late 1990s, described the immediate impact of the Executive Orders signed regularly by Clinton and other modern presidents. While not all major policy decisions are enacted so swiftly, consequential executive, legislative, and judicial actions can exert profound impacts on courts, including the need for additional judges, staff, and space.

As court planners, we work diligently to analyze key trends, to blend analytics and architecture, and to collect and maintain data. All of these aspects of our core services are vital to helping courts effectively plan for future space needs. But occasionally, something happens that no numeric trend, forecast, or metric would predict. It could be new legislation establishing law enforcement priorities, a new executive-level policy on telework, or a high court ruling with far-reaching ramifications. No matter the source of the policy shift, the effect is the same for judges, court managers, and court planners - a suddenly reactive approach in which prior plans are revisited and sometimes scrapped altogether.

Changes Originate from Different Sources

Here are a few real-world examples of policy changes from different sources significantly affecting courthouse space needs:

  • Space Allocation - Policies for assigning spaces to judges, court executives, managers, and staff are a critical piece of the court planning process. Design standards and space assignment policies are often set by executive agencies or judicial policymaking committees. They determine the quantity and type of space(s) that must be included for each position when calculating current and future space needs. 

    When major changes are made to these standards and policies, the quantity of space required to house the same number of judges and court staff can change dramatically. For example, many courts have adopted policies on courtroom sharing, where judges are required to share courtrooms rather than each being assigned a dedicated courtroom. Across an inventory of courthouses, courtroom sharing can save thousands of square feet and millions of dollars over time. However, it also requires updating space plans and project designs developed using the old standards so they are consistent with the new policy. Similarly, the federal government appears ready to embark on an aggressive return-to-office initiative that will likely have broad implications for space planning in government buildings in Washington D.C., and elsewhere.

  • New Legislation - The three branches of government are separate, but they are certainly interrelated. Therefore, when new laws are passed, the “ripple effect'' often extends well beyond the original problem or issue the law is intended to address and can result in a direct impact on courts in the form of additional caseload, judges, staff, and space.

A new courthouse project for which our team recently provided space programming services provides an example. The project involved designing a new, combined courthouse for a state Supreme Court and the state’s intermediate Court of Appeals (COA). Legislation passed during the project’s planning phase had increased the COA’s jurisdiction by significantly expanding the right of appeal for litigants statewide, and by shifting original jurisdiction for most civil appeals from the Supreme Court to the COA. To manage the expected new caseload, the legislation expanded the COA from 11 to 17 judges. 

Programming for the new courthouse began prior to the new legislation. Therefore, the court and our design team revisited previous planning figures to incorporate space to house six additional COA judges, and also to ensure that expansion space was included for related court units, such as the clerk’s office, staff attorney’s office, and IT department.

  • Landmark Ruling - Each year, a handful of landmark court decisions dramatically affect aspects of our daily lives. For example, the U.S. Supreme Court’s 2020 ruling in McGirt v. Oklahoma significantly affected the lives of the state’s residents and by extension, many of the courts that serve them. In McGirt, the court held that under the Indian Major Crimes Act, lands reserved for the Creek Nation in eastern Oklahoma constituted Indian Country, and therefore, the state of Oklahoma could not legally try a Creek citizen for criminal conduct in state court; they could only be tried in federal court.  The ruling was extended from its initial application to the Creek Nation to include the Cherokee, Choctaw, Chickasaw, Seminole, and Quapaw Tribes, whose lands represent the large majority of eastern Oklahoma.

For a few courts, the McGirt ruling caused criminal caseloads to rise exponentially literally overnight, including a significant percentage of complex cases. In working with one of the courts, our team saw first-hand a crisis situation that affected every aspect of operations and created immediate needs for additional space to house staff and conduct proceedings. Temporary arrangements to manage the new criminal docket include coordinating substantial ongoing assistance from judges, prosecutors, and defense counsel from other jurisdictions, and even renting overflow staff space at a nearby underutilized shopping mall. Long-term space solutions are being developed but it will be years before the affected courts’ space fully adjusts to the “new normal.”

Lessons Learned

As these examples demonstrate, new policies, laws, and rulings can quickly and dramatically affect how courts operate and the quantity and type of spaces needed to manage the resulting caseload. In working with the courts involved, some common themes emerged for dealing with new policies:

  • Phased Implementation - When design standards or space assignment policies are adjusted, it is practical for implementation to be forward-looking. In other words, existing spaces that were designed and constructed under now-obsolete guidelines most often cannot be easily renovated or reconfigured to meet the new guidelines. Projects in the planning and design phases should be handled case by case; it might make sense to apply the new guidelines to some projects but not to others. The earlier in the process a project is, the more likely changes can be made cost-effectively. Also, new guidelines should be clearly communicated to design teams, courts, and other stakeholders, and expectations for incorporating the guidelines into ongoing and future projects should be established collaboratively with these groups.
  • Impact Studies - New legislation should be accompanied with studies quantifying or estimating key potential impacts. In the case of the expanded COA jurisdiction, the court leadership and state legislature collaborated closely as the legislation moved forward. Court executives provided legislative leaders with concrete estimates of the additional caseload and judgeships expected to result from the new law. The authorization and funding for the positions and additional space were included in the legislative package. This enabled the court to proactively incorporate the impact of the new law on the future courthouse during the planning and programming phase. If changes were delayed until the law had fully taken effect, the project would have reached the design phase and changes would be much more costly.

  • Outside Help - As the McGirt example illustrates, sometimes the timing and magnitude of impact resulting from an external policy change is so substantial that a court requires help. Because cases take several years to work through the system of appeals before reaching the Supreme Court, the courts involved knew the impact was at least possible and contingent arrangements with other courts were developed pending the outcome. Arranging outside assistance as a contingency before legislation passes or landmark rulings are issued puts a court in the best possible situation to deal with the ensuing impact.

Final Thoughts

These are just a few examples of how external policy changes can swiftly and significantly influence the amount of space a court requires to function effectively. Collecting data, analyzing trends, and developing forecasts are all important aspects of managing court space and planning for future needs.

But sound planning also requires studying new policies under consideration, reviewing proposed legislation that could affect courts, and maintaining a network of judges, court executives, and space planning professionals who can help address emergency situations that arise unexpectedly. An experienced courthouse planner can draw upon a knowledge base of comparable projects and situations to help your court or design team navigate uncertainty and ensure that the design and subsequent phases will proceed smoothly.

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Kurt Schlauch

Kurt Schlauch

Kurt is a lead consultant and project manager with Fentress. He specializes in applying quantitative models to assess facilities and support organizational resource decisions. His personal interests include playing and coaching sports, skiing, and traveling with his wife and two children.