Text of Chief Justice Ronald M. George State of the Judiciary Address

Monday, October 1, 2007

Page 12

Text of Chief Justice Ronald M. George State of the Judiciary Address

California Chief Justice Ronald M. George was to give a State of the Judiciary address to the State Bar of California Saturday in Anaheim. The following text of his remarks was provided in advance by the Administrative Office of the Courts.

Good morning. I am very pleased to have this opportunity — my 12th — to address the Conference of Delegates and the Annual Meeting of the State Bar of California. As you are aware, this is the second joint meeting being held by the Judicial Council’s Bench Bar Conference, the State Bar, and the California Judges Association. The goal in holding these mega-conferences is to encourage educational and informational exchanges among judges and lawyers in order to provide a broader perspective on some of the issues affecting California’s judicial and legal system.

First, I want to thank Shelly Sloan for his service as president of the State Bar during the past year. Under his effective leadership, the State Bar has further enhanced its partnership with the California Supreme Court and the entire judicial branch in dealing with issues of mutual interest, and he and the entire Board of Governors have been a pleasure to work with. As Jeff Bleich assumes the presidency of the State Bar for the coming year, I look forward to continued excellent cooperation between the judiciary and the lawyers of our state. Having worked with Jeff over the years on matters affecting the administration of justice, I know that he has given serious thought to the future course of the State Bar. The two of us had a very productive meeting on that subject last week.

After serving more than a decade as Chief Justice, I can say with certainty that the shapes of some of the challenges ahead are easy to predict — but beyond the horizon crises of unknown shape and scope can emerge. Thoughtful planning for the future is essential, as is flexibility when our plans for the future of the court system and the legal profession take an unexpected detour.

That being said, it has been a very positive year for the judicial branch. We are well on track with our plan to add 150 new judicial positions to what is already probably the world’s largest judicial system with approximately 1650 judges and 450 court commissioners. The Governor has appointed individuals to fill most of the 50 new judgeships created during the 2006 legislative session; another 50 judgeships were created last month in the final hours of the latest legislative session; and we anticipate that another 50 judicial positions will be authorized in 2008.

Given the competing demands on the state’s budget at a time of limited available funding, and the political problems inherent in creating new judicial positions — problems that are magnified when the executive and legislative branches are controlled by different political parties — the creation of 150 new judicial positions is no small achievement. Without the great assistance provided by the State Bar, local and specialty bars, and individual lawyers, we would not have been successful in this endeavor.

In enacting this legislation, the Legislature and the Governor, according the judiciary increased recognition as a separate and coequal branch of government, have provided that the newly created judicial positions are to be distributed around the state in accordance with the Judicial Council’s caseload-determined assessment of need, rather than the political considerations that on some occasions in the past have driven the creation and allocation of new judgeships. I also am very pleased that the three branches of government, working together with various bar associations, have made great strides in improving the judicial appointment process so as to attract a more diverse pool of qualified applicants to the bench, better reflecting California’s diverse population.

The most recent judgeship bill also permits during the coming fiscal year the conversion of the first 16 subordinate judicial officer positions — of 162 over a 10-year period — to judgeships upon vacancies occurring in a SJO position, and upon the Judicial Council’s certification of the need for an additional judgeship instead of a commissioner position for the trial court in question. Many counties created subordinate judicial officer positions over the years when the state failed to create needed judgeships. Because of the unmet need for more judges, however, commissioners in some courts have been presiding by stipulation in complex matters, including multi-million-dollar civil trials and death penalty cases. It is time that these positions become judgeships fully vested with broad jurisdiction and subject to the gubernatorial appointment process and to electoral accountability. There will always be a need for some commissioners to perform subordinate judicial work, but if these individuals are doing the work of judges, they should be appointed, compensated, and treated as judges.

Nowhere is the impact of having too few judgeships more apparent than in Riverside County. With one of the fastest growing populations in the nation, Riverside’s courts have been overwhelmed by filings. On more than one occasion over the last few years, all civil courtrooms had to be closed for weeks at a time so that all courts and judges could be devoted to handling a staggering backlog of criminal matters — with pending time limitations that demanded court action or dismissal of the charges. Needless to say, these delays had severe negative effects upon the rights of civil litigants and the law practices of their counsel.

In August, after consultation with Riverside’s presiding judge, district attorney, and local bar association leadership, I assigned a special strike force of 27 active and retired judges from throughout California to help reduce the Riverside Superior Court’s heavy backlog of criminal cases. These judges currently are engaged in handling the backlog of some of the most serious felony matters, including death penalty cases. Each of these judges has a strong background in criminal law, and they already are making a substantial dent in the workload.

We have not stopped there, however. The leaders of the assigned team of judges will be making recommendations for possible improvements in local case management practices, and 7 of the 50 judgeships created during the last fiscal year were allocated by the Judicial Council to Riverside, with 7 more designated for Riverside from the second group of 50, and 6 more from the third allotment of 50. The backlogs in Riverside, in other fast-growing portions of the Inland Empire, and the Central Valley will not disappear overnight, but we certainly envision a return to continuously functioning civil courts for the foreseeable future.

The real question for the future is how can we make sure this situation is not repeated there or elsewhere in California in future years. For several years now, the Judicial Council — the constitutional entity that I chair as Chief Justice and which is responsible for oversight of the statewide administration of justice — has placed providing meaningful access to justice high on its list of priorities. Having a judge and courtroom available to hear your matter is the most fundamental requirement of accessibility. That should be a firm base upon which we build — and not a necessity that we constantly must fight for.

In a related vein, the Trial Court Facility Act of 2002 set up a process for the transfer of court facilities from county ownership to the state, under judicial branch management. Transfers of facilities proved slower than anticipated because the seismic condition of many of the structures was worse than anticipated and the state would not accept transfer. Finally, an agreement embodied in legislation, was reached last year under which the state would assume ownership, but the counties would retain liability for 35 years for damages caused by inadequacies in the building until they were replaced or repaired.

Facility transfers increased dramatically over the past year, and by the end of the last fiscal year 113 of California’s 451 court facilities had been transferred. Agreement between Assembly and Senate versions of a bill providing an extension of time to complete the project was not achieved in the last hours of the session, but we have strong commitments from legislative leadership to take up the matter as an urgency measure once the legislative session resumes in January.

The Legislature has approved funding for new 12 new courthouse construction projects at various stages, and granted a total of almost $6 million that will be used for the initial stages of the creation of a 31-courtroom facility in Long Beach. The total cost for the project is estimated at $300 million, and it is intended to serve as a model for future projects. Additionally, the Governor has proposed a $2 billion courthouse construction measure for the ballot next year.

In short, the judicial branch is committed to ensuring that the facilities in which justice is dispensed are safe and secure for all those who visit or work in them.

Somewhat less concrete manifestations of our success in improving access to justice include increased funding for self-help centers located in court facilities and elsewhere in the community. An increase of $2.5 million was allocated for this purpose in this latest legislative session. These new centers will offer vital assistance to self-represented litigants, particular in family law cases.

In those proceedings, in some areas of the state 80% or more of the litigants lack counsel. These cases typically raise very emotional issues surrounding the assets of a marriage, child and spousal support, child custody, and sometimes domestic violence. This mixture of frustration and emotion for litigants without a lawyer and little understanding of how to proceed can be highly volatile.

California has led the nation in developing useful services for these litigants so that they may present their cases effectively, have their matters fully and fairly adjudicated, and avoid clogging the court system as it also deals with its caseload of litigants represented by counsel. We shall continue to do so through a variety of means, including our nationally recognized self-help website, which is available in several languages and receives millions of hits each year.

We also shall renew our proposal, included in the Governor’s budget but not passed by the Legislature, to devote $5 million to establish a pilot program to provide legal representation to indigents in civil cases in which fundamental rights are at stake. I hope to see this “civil Gideon” experiment proceed and will continue to press for it.

There are many more activities of the Judicial Council that I could discuss with you if time permitted, but I shall mention only a couple in passing. Pursuant to legislation effective January 1, 2008, and working together with the plaintiffs’ and defense bar, the Judicial Council is adopting rules relating to telephonic court appearances. We also are proceeding with pilot projects for E-filing.

The California Supreme Court also has been an active participant in the judicial branch’s efforts to reach out to the public we serve. On Tuesday of next week, we shall convene a two-day oral argument session in Santa Rosa. It has become an annual tradition for us to hold special sessions in communities around California in addition to our traditional venues of San Francisco, Los Angeles, and Sacramento. In recent years such sessions have been held in Santa Barbara, Redding, Fresno, San Jose, Santa Ana, and San Diego.

In each instance, the remarkable participation of the local bench and bar has made the occasion memorable — but the most exciting aspect is the coordinated educational effort involving local high school students. Selected students start the session by approaching the podium and posing non-case-related questions to the seven of us on the bench. We circulate through the courtroom as many students as we can fit during oral argument, and in dozens of classrooms others watch a live telecast broadcast by the California Channel which is later rebroadcast throughout the state. Information about the cases is distributed to the schools beforehand, and a local judge or lawyer is in each classroom during the telecast to answer questions.

On recommendation of the Commission on Judicial Performance, the California Supreme Court also recently announced plans to create a committee to provide official ethics opinions to judges and candidates for judicial office to assist them in comporting themselves in accordance with the requirements imposed by the California Code of Judicial Ethics. More than 40 states have similar official bodies informing judges about what constitutes appropriate judicial conduct. Although the California Judges Association for many years has provided a valuable service by offering ethics advice to judges and will continue to do so, the California Supreme Court concluded that public confidence in the judicial system would be increased by having such advice rendered by an official body appointed by the Supreme Court (upon which the California Constitution imposes the responsibility for formulating judicial canons of ethics) rather than solely by a voluntary professional organization of bench officers. Once the court adopts these policies and procedures to guide the ethics opinions committee, we shall appoint the committee, which will be separate from the court once it starts to operate.

These are only a few of the many activities underway in California’s court system. One common theme unites them — improving not only public access but also public confidence in the system. California has thus far avoided some of the harshly partisan and political judicial contests now on the rise in other states. Our judicial elections are non-partisan, but this does not preclude political parties or special interests, should they wish to become more actively involved, from casting these contests in traditional political or partisan terms as has occurred in other jurisdictions.

Last fall, I had the honor of participating in Fair and Independent Courts: A Conference on the State of the Judiciary, convened in Washington D.C. by retired United States Supreme Court Justice Sandra Day O’Connor. The conference focused primarily on threats to the federal judiciary, but one panel was designated for state supreme court justices, including myself, to discuss the growing challenges facing state judiciaries. Justice O’Connor was in the majority in the United States Supreme Court’s decision in Republican Party of Minnesota v. White, which struck down on First Amendment grounds some of the ethical constraints imposed by judicial canons on judicial speech during elections. The reach of the court’s decision has been expanded by federal circuit court rulings. By the end of the conference, Justice O’Connor told us that perhaps the high court had not realized the impact of the White decision on state judicial elections and indeed, despite her usual practice of never second-guessing an opinion in which she had participated, she thought the White decision might be one that the court should reconsider.

Justice O’Connor repeated that statement when she attended the California Summit on Judicial Elections held by the Judicial Council a few weeks later. And this fall, I shall be attending a follow-up conference convened by Justice O’Connor titled State Courts: The Debate on Judicial Elections and Judicial Selection. This meeting and its focus on the state courts reflect the growing national awareness of recent threats posed to the impartiality and independence of state court systems.

Here in California, I recently announced the creation of the Commission for Impartial Courts, comprised of four task forces that will focus respectively upon judicial selection and retention, judicial candidate campaign conduct, judicial campaign finance, and public information and education, ultimately presenting a comprehensive set of recommendations to the Judicial Council. The membership of the Commission includes judges, lawyers, professors, court administrators, and public members with backgrounds in areas such as journalism, the Legislature, and the League of Women Voters.

The partisan campaigns recently conducted in other states and heavily funded by special interests may not have directly reached California, but they may be close at hand — at least, that is the claim of their proponents.

I strongly believe that an impartial judiciary — and it’s corollary, adherence to the rule of law — are the cornerstones of our democratic form of government. Ironically, at a time when our national government is proposing to export those concepts to other parts of the world, here at home some trends in popular culture and political discourse have undermined the public’s understanding of the role of the judicial branch in the checks and balances that govern the relationships among the three branches of government. It was particularly distressing to learn that according to a recent poll, two of three adult Americans cannot name the three branches of government, and one out of three is incapable of identifying even a single branch. We certainly cannot expect deep respect and concern for the independence and impartiality of the judiciary, and the role of checks and balances among the three branches of government if, to begin with, large segments of the population are unaware there are three branches.

This is an ongoing challenge. Fewer and fewer legislators are lawyers. More and more reactions to court decisions are based on the bottom line of who won and who lost, with no focus on the basis for the court’s decision and no mention of whether it was compelled by applicable law.

Our tradition of an impartial and independent judicial branch cannot be taken for granted by any generation. It is incumbent upon all of us to do all we can to preserve this principle and the rule of law. The great Chief Justice John Marshall, noted author of the opinion in Marbury v. Madison, spoke eloquently at a constitutional convention in 1829 in his home state of Virginia on the role of state judges in the everyday lives of American citizens: “[The judge] has to pass between the government and the man whom that government is prosecuting — between the most powerful individual in the community, and the poorest and most unpopular. It is of the [foremost] importance that in the performance of these duties he should observe the utmost fairness....The judicial department comes home in its effects to every man’s fire-side — it passes on his property, his reputation, his life, his all.”

That is a simple vision — but one that needs constant reinforcement to ensure it remains available to all Californians. I am honored and fortunate to work with 19,000 men and women from every corner of our state who constitute the judicial branch of California’s government and who daily dedicate themselves to ensuring meaningful access for all to the courts of our state. I trust that you too will keep yourselves and others informed about these crucial issues.

Thank you again for inviting me here today. We live in interesting times — a wish ascribed to an ancient Chinese curse — but such times offer many opportunities as well. I hope you will take advantage of the many avenues available to assist the judicial branch in its ongoing efforts to enhance its ability to provide fair and accessible justice for all Californians.