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MCLE Self-Assessment Test

State’s judges debate trial court autonomy

By Nancy McCarthy
Staff Writer

California CourtsAs legislation to provide trial courts more local autonomy winds its way through the Assembly, it’s causing angst among some of the state’s judges who are lining up for or against the measure. So partisan is the debate in some quarters that an appellate justice recently lamented the “vitriol and character attacks” that have accompanied consideration of the hotly debated proposal.

Even in the legislature, behind-the-scenes politicking has moved AB 1208 out of an oversight committee that has never voted on any bill to the Judiciary Committee, where it is scheduled to be heard May 3. Some Capitol observers believe the measure’s provisions may change substantially before that hearing.

Authored by Charles Calderon, D, Montebello, the Trial Court Rights Act of 2011 would shift substantial authority over trial courts from the Administrative Office of the Courts and the Judicial Council to the local courts. It would undo some of the reforms promoted by former Chief Justice Ronald George that centralized power within the AOC, instead giving each local court “the independent right and duty to manage its administrative and financial affairs in accordance with its own policies.”

The measure has prompted heated debate and something of a war of words within the judiciary. Calderon introduced the measure at the behest of the Alliance of California Judges, a group that claims 400 members and for more than a year has been fighting what it views as a too-powerful Judicial Council.

Charles Calderon
Assemblymember Charles Calderon

Calderon said the alliance approached him last year, but unsure if its members were “real or renegade,” he opted against legislation. But when the State Auditor lambasted the Court Case Management System (CCMS) for mismanagement and runaway costs earlier this year, “I took another look at this,” Calderon said, “and began to believe these judges were sincere, raising valid issues and they may be the solution, not the problem.”

Not surprisingly, the Judicial Council opposes 1208, questioning its constitutionality as “an unwarranted intrusion into the fundamental governance of the judicial branch.” In letters to Calderon and other lawmakers, Curtis Child, director of the council’s Office of Governmental Affairs, wrote, “This bill goes well beyond the Legislature exercising its responsibility for funding the judicial branch, and instead dictates how the branch should specifically govern itself.”

Justice Tani Cantil-Sakauye
Chief Justice
Tani Cantil- Sakauye

Chief Justice Tani Cantil-Sakauye called the bill “reckless and unwise” and said its backers did not respond to her invitation to be part of the solution. She opposes the measure on both process and substantive grounds, said its timing was problematic and it appears to be a retreat from hard-earned structural changes achieved within the judicial branch over the last 15 years.

The new chief justice said as soon as she took office she extended an olive branch to dissident judges, but 47 days later, “without any effort  . . .  to come to the table, they introduced this bill.” At the time, she said, the judicial branch was working to address a $200 million budget cut that primarily affects trial courts. But instead of helping fight the budget fight, she said, “those judges are instead bringing about a bill over things they are unhappy with over 15 years.”

The California Judges Association is neutral on the bill after a March survey found an almost even split over AB 1208 among respondents. Of the 877 members (out of 2,564) who responded, 48 percent said they support 1208, while 45 percent are opposed.

Superior courts in Los Angeles, Kern, Amador, Mariposa and San Mateo counties back 1208, while the Santa Clara, Sonoma and Santa Cruz superior courts are on the “no” side. Although the Sacramento court expressed formal support for the bill, 17 judges on that bench asked Calderon to disregard a letter in favor of the measure, saying they had not had an opportunity to discuss it.

A group of 15 sitting and retired judges sent an email to the state’s judges expressing concern about what First District Court of Appeal Justice Peter Siggins called “the travails” of the courts and lamenting the “vitriol and character attacks that have become part of the debate.” The signatories acknowledged concerns about CCMS and local court governance, but said 1208 threatens to compromise the independence of the judiciary and “represents an unprecedented invitation to the Legislature to decide policy issues on matters relating only to the internal organization and governance of the judicial branch.”

In addition, nearly 200 current and former judges signed a “Dear Colleague” letter opposing the bill, which they said “would transform the judiciary from a cohesive and co-equal branch of government into 58 fragments. This diminution of judicial unity and power will be accomplished not through the acquiescence or consent of the judicial branch but through legislation.”

Contra Costa Superior Court Judge Mary Ann O’Malley, a past chair of the Trial Court Presiding Judges Advisory Committee who signed the “Dear Colleague” letter, said the bill is premature, did not undergo the usual exhaustive vetting process among various judicial committees and is disrespectful to the new chief justice, who took office about six weeks before it was introduced. She echoed Cantil-Sakauye’s criticism of dissident judges who complain about the Judicial Council without participating in judicial committees. The chief justice “put out welcome mat to people from different groups, she’s really making wonderful attempts to bring this branch together,” O’Malley said. “I think we ought to afford her the opportunity to do so before we go to the legislature and ask it to make our governance decisions for us.”

O’Malley also said medium and small courts could be hurt by the measure because they will lose the services and assistance the AOC offers but they could not otherwise afford. Those resources, O’Malley said, are “absolutely essential” to the operations of smaller courts.

It is just that centralized AOC power that the Alliance judges are fighting. Sacramento Superior Court Presiding Judge Steve White, who sits on both the CJA and Alliance boards, accuses the AOC of accumulating enormous power since the 1997 passage of the Lockyer-Isenberg Trial Court Funding Act, which transferred funding for the courts from the counties to the state and directed adoption of a “trial court Bill of Financial Management Rights.”

In the past 13 years, White said, the AOC “expanded dramatically, has become a very large and hungry bureaucracy, and has engaged increasingly in management and micro-management of the 58 (county) courts . . . . The consequence has been that the constitutional and statutory independence of the trial courts has been gravely compromised and 1208 is written to address that.” 

The state auditor’s February criticism of CCMS – White called it “the wind in the sails” – gave the Alliance the momentum behind the introduction of 1208 as well as the ability to attract judges’ support. The group saw AOC’s decision last year to furlough court hours rather than scale back spending on CCMS as a misplaced priority that provided the stimulus it needed for change. “The money was squandered because the trial courts’ views were not respected,” White said.

That view is shared by 20 sitting and retired judges and one appellate justice who, in a letter to colleagues, said 1208 “corrects an imbalance in local trial court governance” and sharpens the focus on those courts’ rights and responsibilities. “AB 1208 simply reaffirms that the Judicial Council does not govern the trial courts . . . and codifies several concrete financial and management rights,” the judges wrote. “The enactment of AB 1208 will lessen the possibility of unwanted legislation, not heighten it.”

Calderon rejected criticism that his bill violates the separation of powers between the legislature and the judiciary and complaints that Cantil-Sakauye has not had time to study the issues. He said he respects the new chief justice, who “can adopt any policy she believes is appropriate.” Further, he said, the legislature has the constitutional power of the purse and can direct how public funds are spent.

“The fundamental issue,” he added, referring to the Judicial Council, “is whether a group of 21 judges, from the trial courts up to the Supreme Court, whether that body that meets six times a year can manage a bureaucracy of over 1,100 people. That’s the question.”

Cantil-Sakauye said she met many times with Calderon and asked for “specific examples of problems this bill fixes” and well as issues she could resolve without legislation. “I never got a direct answer,” she said.

The State Bar has not taken a position on the legislation but its board of governors will consider 1208 at its meeting this month.

In addition to the differences of opinion among the state’s judges about 1208, its path through the Assembly clearly sparked some political tension. The measure initially was sent to the Accountability and Administrative Review Committee, a relatively new oversight panel that has never voted on a bill. The committee was expected to be friendlier to the measure than the Judiciary Committee, chaired by Mike Feuer, D, Los Angeles, who, like previous Judiciary Committee chairs, is a member of the Judicial Council.

Two days before a scheduled accountability committee hearing, Calderon asked that the bill be moved to the Judiciary Committee, saying he did not see the need to bring witnesses to Sacramento for two hearings. “I’m satisfied it will get a fair hearing” in the Judiciary Committee, he said.

Asked about the apparent politicking, he said wryly, “It’s quite simple. It mysteriously ended up in accountability and it mysteriously ended up in judiciary.” He’s “fairly confident,” he added, that the bill will be approved.