Law libraries license and purchase content and access. The costs of those things are volatile. Sometimes a publisher ships more or fewer items. Sometimes those items, no matter how numerous, cost more. The point is that a budget is not meant to be ESP. So when funders come to us at year end and extract money, it can create unnecessary pain. A couple of government law libraries are going through that right now. They rob Peter to pay Paul.

Minnesota has a filing fee funded law library system. The law library fee is $10 or $15 depending on the case and ranges from 5% to 15% of the main fee. It is not uncommon for fees to be designated for law library use. Until recently, that was even the case in our jurisdiction. Members paid annual dues but a component was designated the law library levy.

The fund designation suggests an intent. There is a legislative action that says, “we think access to the law is important and so we will ensure access by designating specific filing fees for that purpose.” Otherwise, the legislature could just fund the judiciary in a lump sum and leave the discretion of funding access to the law up to the judges.

Fund Extraction

This isn’t a new thing in Minnesota. A law “allowing” courthouse law libraries to fund construction projects was vetoed in 2017. The law reflects a particular view of law libraries, the library as space rather than as information resource.

If a county law library, through its trustees, has a fiscal reserve that is projected to sustain its operations for a period of over five years, the county law library may transfer up to half of the money in its fiscal reserve, but not to exceed $200,000, to the county in which the library is located to defray costs of constructing a new building to house the law library and courts.

Minn. SF1113

That didn’t actually stop the approach. The law was passed in relation to one county in 2017. Minnesota’s governor just passed a law allowing a second named county to enable that transfer as well. As one senator noted, it sets a precedent and eliminates the transparency around why the filing fee is collected in the first place.

The Polk County board is raiding the library account to pay for general courthouse tech upgrades. The library account is statutorily dedicated to paying for the library. … It is listed on the schedule of fees paid by civil filers and fine-payers as a law library fee, so redirecting its use is deceptive, too, lacking in transparency and accountability

What struck me in the senator’s statement was that the money was to be used for judicial technology upgrades. In a sense, that’s totally understandable. The judiciary in many jurisdictions have been laggards in adopting technology improvements. Even when they build new courtrooms or courthouses, technology seems to be an after thought.

I don’t have any problem with a jurisdiction deciding to fund courthouse or courtroom technology. If that improves the administration of justice, that’s a great investment. And I understand why some jurisdictions cannot afford to fund access to legal information. I don’t think it’s wise but needs must.

It begs the question why the legislature, who controls all of these decisions, does not just ensure the courts have funds for technology upgrades. If they can allot filing fees to the law library fund in a county, they can surely allot funding for new wiring, screens, data management, and accessible kiosks for parties.

Unfortunately, the converse isn’t necessarily true. When a courthouse law library in Ohio was running out of funds this year, they were told to make do:

So in other words, we are SOL?” Nalazek asked.
As far as seeking funds from the county, you’re absolutely correct,” Eliason confirmed.

Conversation between Athens County (OH) law librarian Roy Nalazek and Athens County Commissioner President Lenny Eliason, June 2020.

Think Long Term

Courthouse law libraries don’t have a lot of clout. In some ways, you would expect legislators to see that it was their job and that, of the many options they have, piecemeal scraping of excess law library funds isn’t the best way. The reality is that many funders are afraid of raising taxes or maintaining dues levels – even when those actions are necessary to fund the operations – because it creates job risk for them.

Funders might:

  • reduce the law library filing fee and create a court technology fee
  • earmark funding specifically for the adoption and maintenance of court technology
  • monitor the excess funding in courthouse law libraries and reduce filing fees in accordance
  • clawback all or part of excess funding so as to avoid any one law library accruing $200,000

There are so many choices. My preference is actually the latter. Funders are worried about perceptions as much as anything. People with a political bent are always on the look out for pots of money they can label slush funds.

On the other hand, though, we work in a volatile legal information world. We cannot always foresee how our costs will change from year to year. If we eliminate all ability to adapt to changing variables, we – the law library, the funders, the researchers – will suffer the negative consequences.

Organizations handle this issue all the time. People call them savings accounts. Companies call them reserves. Even governments have them.

When your organization does not allow for reserves, you find that departments will shift the reserve into their budget. This means that they are protected from volatility. It also encourages a spend-every-penny budget rather than a zero-based budget. There is no reward for leaving money unspent as you are likely to be denied it if you cannot show you have need of it.

This is particularly unfortunate in a pandemic. A lot of law library budgets are going to look pretty strange at year end. We may have spent less in a number of ways, or shifted our spending to accomodate new service delivery models. Or reduced our print spending to purchase equipment for our staff to be safe (PPE) or to work at home effectively.

If anything, this year could have been an opportunity for funders to recognize the volatility. Rather than eliminating excess funds, create a plan to enable a financial cushion to help absorb future volatility. If your law library has a $50,000 a year budget, perhaps $5,000 is enough of a cushion. I have always liked 10% (rather than a fixed amount) because it is a bit more than a month’s worth of expenses if something were to go wrong. If the rule is being created for more than one entity then you don’t create imbalances between larger and smaller law libraries.

And when you have put that 10% aside, you return everything else to the funder. Law library directors have fiscal obligations too. We tend to be part of larger organizations – courts, law schools, government agencies, law firms – and we want those organizations to succeed as well. There is no value in the law library creating a substantial fund for itself at the expense of other programs or needs.

But it is not the law library’s decision alone. The funder – the Minnesota legislature, for example – has a role to play in thinking long term about legal information access. Short term money grabs, cultures that encourage bloated budgets because the funder won’t account for real-world volatility, these are the things that we need to fix.