Tuesday, December 22, 2009
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New State Judges’ Group Calls for ‘Trial Courts’ Bill of Rights’
By KENNETH OFGANG, Staff Writer
A recently formed organization of California judges seeking changes in how courts are governed has said it will work for legislation creating a “Bill of Rights” giving trial courts a greater voice in management and funding decisions.
Members of the Alliance of California Judges sent a letter to jurists statewide on Friday saying the Judicial Council failed to enact the “decentralized system of trial court management” provided for in the 1998 statewide trial court funding law. (A copy of the letter, and the text of Government Code Sec. 77001, appear on Page 4.)
The group also said it wants lawmakers to create a body with oversight over the Administrative Office of the Courts and whistleblower protection for AOC employees.
Contact With Legislators
The local point person for the alliance, Los Angeles Superior Court Judge Charles Horan, said that he has not directly contacted any legislators from the area, but that such efforts will take place.
Horan previously told the MetNews that under court unification and state trial court funding, the power to govern the trial courts has passed from the local courts to “the triumvirate” of the Administrative Office of the Courts, the chief justice, and the Judicial Council. The chief justice chairs the council and appoints the other judicial members, accounting for 16 of the 21 voting seats on the state’s judicial rulemaking body.
Legislation would not be necessary, Horan suggested yesterday, if the AOC were more responsive to local courts’ input. The chief justice could, he suggested, “allow trial courts more input into the selections” of the council members.
But “since [the chief justice and AOC] don’t wish to bend,” the jurist said, “...the only approach is the legislative one.” What the alliance envisions, he elaborated, is a body on which each of the 58 superior courts would have its own elected representative and “a smaller group of that 58” would “report to the [Judicial] Council, Legislature, and public.”
Options Being Considered
While the group has not foreclosed the possibility that it would support a different model, “this is the best approach we’ve been able to come up with,” he said. The real problem, he added, is that “the average judge has as much input into council and AOC business as the man on the street.”
The only appellate justice among the signers, Thomas Hollenhorst of the Fourth District Court of Appeal, Div. Two, said that while the alliance is primarily concerned with trial, rather than appellate, court governance, he became involved because he has “always believed that local issues [are] better resolved at a local level.”
Prior to becoming an appellate justice, and before trial court unification and state funding, Hollenhorst was presiding judge of the Riverside Superior Court. At the time, he said, “the majority of courts were sufficiently funded, sufficiently staffed, and well governed because we knew what the issues were locally.”
While the alliance is small and cannot afford to hire a lobbyist, he said, the members are working “on a pro bono basis,” and most of its members “have some form of contact with legislators [because] we live in communities where we know them one-on-one.”
He has personally been in contact with Inland Empire lawmakers about the issues, he said, although he declined to name who he has spoken with.
A spokesperson for the state courts said she was uncertain whether George had seen the letter. She said that the administrative director of the state courts, William Vickrey, was out of the office most of yesterday but might have a comment today.
Alliance of California Judges Letter to Jurists Statewide
December 18, 2009
Dear Colleague:
We are writing to you asking that you join the Alliance of California Judges, if you are not already a member. The events of the past two weeks make it imperative that judges stand up for oversight by elected trial court judges regarding trial court management and budgeting.
On September 11, 2009, in response to the unprecedented financial crisis now facing our judicial branch, a new organization of judges in the State was formed called the Alliance of California Judges. In less than three months, by word of mouth, we now have 156 judges from 20 counties who have joined us.
Our organization does not stand in opposition to any existing judicial organization. Many of our members are also members of the California Judges Association. In fact, we applaud CJA President, Los Angeles Judge Michael Vicencia, for his position at the December 15, 2009 Judicial Council meeting where he called for greater oversight by the Judicial Council over AOC salary raises. Judge Vicencia has also courageously stated that judges should make their voluntary donation locally and withdraw from the AOC’s salary waiver program. The Alliance agrees with these positions, but believes that much greater oversight is required. When the President of CJA expresses a respectful and heartfelt position, and proposes a very reasonable and, frankly, restrained, proposal for further oversight by judges, and is met with the response from a Judicial Council leader that “I’ll be damned if I’m in a mood of some major overhaul of the judicial governance policy because of some newspaper article that caused some judges to get angry...,” there is a serious problem of governance. As judges, we cannot blindly ignore repeated editorial demands for audit of the AOC, demands for transparency from an angry Legislature, serious public questions as to the competency and trustworthiness of the AOC as an organization, growing public anger, and internal dissension among judges.
The Alliance exists to provide a very targeted voice on governance and budgeting.
We are not advocating any ultimate budget outcome for our courts. We are urging reaffirmation of the primacy of local court management mandated by Government Code section 77001. We advocate full participation of our local courts in the critical budget and management decisions our courts are facing.
For the first time in our state’s history, the courts of our state have been ordered to close for budget reasons, something that did not happen even in the Great Depression. The judiciary is in crisis. Every judge must be involved in the solution to this crisis.
Judges are worried and are now arguing publicly over management and over budget priorities for operations, computers, and new court construction. The reason judges are even having this debate is because local courts have had too little input about judicial management and budgeting.
Public concerns over the competency of court management have now erupted into media demands for audit and accountability of the Administrative Office of the Courts, and demands from the other branches of government for audit and disclosure. We are very concerned that these demands threaten an independent judiciary and the separation of powers. All judges, regardless of their personal philosophies or personal affiliations, should respond by calling for an open debate with full participation of our trial courts on our budget priorities.
In 1998, the Legislature changed future court funding from the counties to the state. In doing so, the Legislature acknowledged the need for strong and independent local court management, giving preference to local flexibility. The Legislature asked that the Judicial Council minimize regulations over county courts. The Legislature also asked that the Judicial Council adopt a Trial Court Bill of Financial Management Rights. The Judicial Council has never adopted that Bill of Rights. Our trial courts were given little or no input into the budget decisions that closed our public courts.
The current governance model does not adequately address the decentralized system of trial court management mandated by Government Code section 77001. We are alarmed that proposed legislative changes somehow emanated from the AOC during last year’s budget process which would have amended Government Code section 77001, eliminating a decentralized system of management, eliminating local authority and management of the courts, eliminating local authority over trial court budget allocations, eliminating local control over personnel, and eliminating the right of each trial court to elect its presiding judge and select its CEO.
Also in 1998, the Legislature required that budget decisions for the courts would be reviewed by a Trial Court Budget Commission. In 2002, as part of a very complex bill, the Trial Court Budget Commission disappeared. Now ultimate trial court budgeting is determined directly by central management in San Francisco.
These changes have resulted in a court budgeting process that has evolved from a public process conducted locally, to one that is remote and controlled by the AOC. This budget management from the top down excludes effective debate and consensus. As judges, we know that a fair hearing is just as important as outcome. How vested do you think any litigant would be in the fairness of the process in your court if you took the bench and announced that you did not need to hear from anyone because you had already made up your mind based upon a report your staff wrote? We also believe that strong appellate courts and meaningful appellate process depend upon the vitality and independence of the trial courts. It is time to restore public confidence and accountability by providing for input from a group governed democratically by elected judges.
We believe that the Legislature should reaffirm the rights of the local trial courts by putting into law the Trial Court Bill of Rights which the Judicial Council failed to adopt.
We also believe that the Legislature should establish a separate Trial Court Advisory Group, consisting of trial judges elected by judges from the 58 county trial courts, with provisions to balance the interests of smaller and larger courts, which could advise the Judicial Council, provide oversight to the AOC, and report upon the judicial budget and judicial affairs to the public, the Legislature, the Governor, and the Judicial Council itself. This group would also serve the original purposes of the Trial Court Budget Commission in the original 1998 state court funding legislation. These judges would volunteer, and would have independent staff assistance provided by funds already allocated to the AOC.
Finally, the Alliance believes that the Judicial Council should encourage the Legislature to place the employees of the AOC under the existing protections of the whistle blower statutes, to ensure that employees feel free to bring their concerns about operations of the AOC to public light.
Please join this effort. Our new website will be operational next week, and we will send you the address of that site. At this time we are asking for no more than your statement of membership indicating your support. You may indicate that you are a member simply by contacting any board member named below, at the email address or any telephone number indicated. To confirm your membership, we ask that you provide us with a preferred email contact address to receive membership information. If you wish to join confidentially, please be assured that we do not and will not publish or make public the name or names of any member without express consent.
Further if you have any ethics questions, now or in the future, we receive ethics advice from Justice Thomas E. Hollenhorst, an Alliance board member, and Judge Julie Conger (ret.). Justice Hollenhorst is an Associate Justice on the Fourth DCA. Judge Julie Conger is a retired Superior Court judge (Alameda County Superior Court 25 years) currently serving as an Assigned Judge. Both Justice Hollenhorst and Judge Conger served on the CJA Ethics Committee as committee members for nearly 20 years, and both served as Chair and Vice-Chair. Both have answered several hundred ethics inquires from judges throughout the state via the Ethics Committee Hotline, have participated in authorship of several Formal Ethics Opinions of the Committee, and have taught judicial ethics for CJER and CJA for over 20 years. Justice Hollenhorst and Judge Conger helped develop and have taught all four versions of the qualifying ethics programs for CJER and they have individually written and taught numerous Ethics Elective programs over the past twenty years.
We look forward to seeing your name added to our confidential roster of judges and justices. Your statement of membership will help us to reach the goals outlined in this letter.
Very truly yours,
[San Mateo Superior Court Judge] Mark R. Forcum
[Sacramento Superior Court Judge] Maryanne Gilliard
[San Diego Superior Court Judge] Daniel B. Goldstein
[San Luis Obispo Superior Court Judge] Dodie A. Harman
[Fourth District Court of Appeal Justice] Thomas E. Hollenhorst
[Los Angeles Superior Court Judge] Charles Horan
[Kern Superior Court Judge] David R. Lampe
[Sacramento Superior Court Judge] Loren E. McMaster
[San Diego Superior Court Judge] Lisa Schall
Text of Government Code Section 77001
Government Code Sec. 77001:
The Judicial Council shall adopt rules which establish a decentralized system of trial court management. These rules shall ensure:
(a) Local authority and responsibility of trial courts to manage day-to-day operations.
(b) Countywide administration of the trial courts.
(c) The authority and responsibility of trial courts to manage all of the following, consistent with statute, rules of court, and standards of judicial administration:
(1) Annual allocation of funding, including policies and procedures about moving funding between functions or line items or programs.
(2) Local personnel plans, including the promulgation of personnel policies.
(3) Processes and procedures to improve court operations and responsiveness to the public.
(4) The trial courts of each county shall establish the means of selecting presiding judges, assistant presiding judges, executive officers or court administrators, clerks of court, and jury commissioners.
(d) Trial court input into the Judicial Council budget process.
(e) Equal access to justice throughout California utilizing standard practices and procedures whenever feasible.
Copyright 2009, Metropolitan News Company