As the COVID-19 pandemic spread earlier this year, state courts closed their doors, restricted in-person proceedings, and started to incorporate remote operations such as electronic filing and notarization, video-conference hearings, and online dispute resolution (ODR) to continue their work. These essential changes, however, have led to new funding challenges.
To help meet these challenges, court officials are looking to tap into federal pass-through funds, which are state-administered federal funds, and other money available through the Coronavirus Aid, Relief, and Economic Security (CARES) Act.
Pass-through funds—which can include block, formula, and open-end reimbursement grants generally give states flexibility in making funding decisions. That means courts can consider tapping this money to support a broad range of operations, including technology integration, self-help strategies such as legal information and fillable forms for those representing themselves, and partnerships with civil legal aid organizations.
Organizations offering technical assistance are helping courts and civil justice partners explore these funds. For example, the National Center for State Courts recently posted a video about potential federal funding opportunities. Part of a series known as Tiny Chats, the video highlights a detailed document— known as a grants matrix—that lays out what is available, as well as strategies for getting access to those dollars.
The matrix presents a high-level view of federal pass-through funds that can support court-based services during the pandemic and beyond. It includes COVID-19-related guidance, as well as details on the potential use of funds to support new technologies, such as remote hearings or ODR. Karen Lash, a leading expert on federal funding as director of the Justice in Government Project at American University and former executive director of the White House Legal Aid Interagency Roundtable, prepared this compilation of resources.
Although the specifics of the authorizing statutes and state application processes vary, the federal funding sources generally follow common patterns. First, Congress appropriates the money for a defined purpose and determines the distribution formula for states, the District of Columbia, and territories. Second, the states have some discretion over how they spend the money based on local needs. And third, with some exceptions, state and local executives are generally responsible for decision-making and administration of these dollars within the federal parameters.
Lash urged court administrators to start looking now for funding sources that can help meet their needs.
"Whether traditional federal pass-through or CARES Act authorized funds, my advice is don't wait,” she said. “Do your research. Figure out who is the right person to take the lead on reaching out to particular state administrators. CARES Act funding, in particular, must be spent by state and local governments by Dec. 30 on necessary expenditures incurred due to COVID-19.”
She added that expenses incurred to move court operations online, enable remote hearings, institute online chat functions, and purchase new online self-help tools and other technology solutions are all allowable uses of the funds appropriated as part of the pandemic response.
States are looking at a variety of funding sources to build, support, and expand services. For example, in July, court officials in New Mexico were exploring how they could use U.S. Department of Housing and Urban Development (HUD) Community Development Block Grant (CDBG) funds to help with foreclosure and eviction diversion. Although they ultimately decided not to pursue CDBG funding because the mortgage settlement program involved HUD-backed mortgages, they are seeking additional money through the state legislative process. These officials also are tracking COVID-19-related work and expenses that could possibly be reimbursed through the CARES Act.
Other states are using CARES Act funding to support operations. For example, courts in New Hampshire received about $1.5 million to increase cleaning and sanitation efforts at those facilities, leverage technology to expand teleworking and public access to court proceedings and help drug court clients who may be struggling because of the pandemic.
In early July, the Kansas Judicial Branch received $1.6 million from the state’s Federal Coronavirus Emergency Supplemental Funding program. These funds will support remote hearings, videoconferencing, a new portal to help those seeking protective orders, computer terminals, centralized email service, and other upgrades to court technology.
In Texas, Harris County Presiding Judge Jeremy Brown said his Justice of the Peace Court is exploring innovative funding options, such as tapping CARES Act funds to buy videoconferencing kiosks. These are public computer centers that would be available to litigants with limited access to technology.
Other courts are looking to fund platforms for ODR that allow people to resolve cases asynchronously, usually by negotiation or mediation.
Alaska is using Coronavirus Relief Funds, as they are known in the CARES Act, to support a statewide ODR pilot. The state will soon release a request for proposals to identify a technology vendor to help launch ODR for many types of civil cases. The pilot program should reduce the number of people coming to courthouses in person and create a convenient option for resolving these matters online.
In Vermont, the state judiciary submitted an $8 million request for CARES Act funding to the Legislature to support court operations. Governor Phil Scott signed off on this request to use funds to pay for remote technologies and services for court users, public access to court proceedings, court redesign to support social distancing, and other needs created by the pandemic.
As community needs change and, in some cases, grow, state courts seek to better serve people through the adoption of new technologies and other court-based services. During and after the pandemic, court leaders can boost these efforts by seeking federal pass-through funds as outlined in the funding matrix.
Erika Rickard directs and Casey Chiappetta is a senior associate with The Pew Charitable Trusts’ civil legal system modernization initiative.