Tuesday, April 27, 2010
Page 7
PERSPECTIVES (Column)
Presiding Judge ‘Tim’ McCoy Is on Campaign Stump, Advocating the Cause of His Court
By ROGER M. GRACE
Charles W. “Tim” McCoy is engaged in an activity that Los Angeles Superior Court presiding judges don’t customarily undertake: campaigning. The indefatigable PJ is going from group to group, pleading his cause…that is, the cause of the court.
His message—being delivered before bar associations and law firms, and other forums—is uncomplicated: The court needs adequate funding, and without it, the court can’t serve the public effectively.
The soundness of that proposition cannot be questioned. The counter-argument is that during the severe recession we’re in, the Los Angeles Superior Court simply cannot be granted money that isn’t there, and if cutbacks must occur, well, so be it.
Back to McCoy. He insists the money is there, and should be freed up. He made a convincing case for his position Thursday night at a fundraiser in Westwood for Levitt & Quinn, a nonprofit law office that provides family law representation to low-income litigants at a meager cost.
However, the next day, in San Francisco, the Judicial Council spurned his plea that it undertake efforts in the Legislature to redirect existing funds—residing, idly, in a court construction account—to ongoing trial court operations throughout the state. In particular, McCoy wanted $47 million for this county. McCoy’s approach was rebuffed in favor of an expression by the council of a vague resolve to work with the Legislature and the governor. To the extent this would entail soliciting additional funds from the Legislature, it would be an unrealistic quest in light of the estimated $20 billion budget shortfall.
McCoy was backed by only two members of the council, Los Angeles Superior Court Assistant Presiding Judge Lee Edmon and her heir-apparent as APJ, Judge David Wesley.
Other voting members on the Judicial Council from Los Angeles are Assembly member Mike Feuer and former Los Angeles County Bar Assn. President Miriam Krinsky. Feuer was absent and Krinsky observed that the AOC report “makes a lot of sense to me.”
There is a definite disincentive to siding with McCoy, no matter how potent the force of his argument. He’s butting heads with the chief justice of California, Ronald M. George, who has the clout.
George, as you probably know, wants to devote what resources the judicial branch has to the upgrading of court computer systems and to courthouse construction and maintenance. McCoy, on the other hand, thinks it’s more important to keep existing courtrooms open and to stave the “furloughing” (axing) of masses of court employees.
In March, 329 Los Angeles Superior Court employees lost their jobs; another 500 are slated to be handed pink slips in September; paring another 530 employees from the payroll is expected by the end of August 2011.
In his various addresses, McCoy does not mention his adversary, George, by name. He doesn’t need to. Everyone knows who he’s up against. Though McCoy is the presiding judge of the largest trial court in nation, there’s no doubt that he’s a David pitted against a Goliath.
But he’s a David with a message that makes sense, and Goliath’s approach doesn’t.
“You can argue that we need new courthouses,” McCoy said at Thursday’s meeting. “Yes, we do,” he proceeded to acknowledge.
But, he pointed out, as he has repeatedly, it’s a matter of priorities.
I’ve talked with a good many lawyers and judges about this controversy. All see it as McCoy does: that it would be fine and dandy to patch up deteriorating courthouses and to build new ones, and to enhance the statewide court computer system—but the number one goal has to be to keep the courts in full-time operation.
As it is, there’s a mandated statewide court “furlough” day once a month. Judges can’t be compelled to forfeit pay on that day, of course (since pay may not be diminished during a term of office). Nonetheless, they are expected to do so, and the vast majority comply. The judges have never received overtime pay for working nights and on weekends because, after all, they’re office-holders, not hourly employees. But now, they’re being treated like time-clock punchers, expected to relinquish pay for a day they’re not required to be at work (even if, in fact, they are there).
If the situation were not desperate, there would be no furlough days. George and his alter ego, the Administrative Office of the Courts, acknowledge that the situation is bad, but they accuse McCoy of exaggerating the extent to which layoffs and court closures will have to be effected if the Los Angeles Superior Court does not receive greater funding than is now earmarked for it.
George is quoted in a Feb. 16, 2010 Los Angeles Times article as accusing McCoy of taking a “Chicken Little approach.”
An AOC report, approved by the Judicial Council on Friday, says:
“Based on our review of relevant information, staff has arrived at two principal conclusions:
“1. The level of reductions and unfunded costs facing all 58 of California’s trial courts is far too large and is not sustainable—courts will require additional funding to be able to avoid significant reductions in operations, including potentially substantial staff reductions and furloughs over the next three years; and
“2. The scale of staff reductions planned by the Los Angeles court is larger than necessary, due to underestimated savings resulting from staff attrition and layoffs, additional funding not reflected in the court’s plan, and other issues.
“Even after adjusting for this overstatement, though, the level of reductions facing the Los Angeles court, like all other courts in the state, is staggering.”
It is unlikely the court is exaggerating. It is seeking funds to avoid laying off employees and closing courtrooms. It’s not a matter of asking for more money than it actually needs so it could use the surplus on constructing courthouse saunas for the judges or putting badminton courts in the basements. If it got $47 million, it would still have a deficit, it would still have to make cuts.
As McCoy set forth in a Feb. 22 letter to the Judicial Council:
“We must emphasize that redirecting $47 million annually will not prevent future layoffs and significant service interruptions in Los Angeles, because the sum only mitigates part of our existing, embedded $133 million structural deficit, which is growing.”
By the way, McCoy disputes the AOC’s figures, thundering in a March 31 letter to the Judicial Council that “[t]he AOC’s methodology is so distant from the realities of trial court operations that its results bear little resemblance to actually achievable labor savings” and that there has been “a gross miscalculation by the AOC of savings achievable from our staff reductions.”
Assuming, however, for sake of argument, that the court, though facing a need for “staggering” reductions, is overstating how staggering, the question still emerges as to what course to take.
The AOC’s report, adopted Friday, recommends:
“1. Direct staff to continue to pursue, on an urgent basis, a broad and flexible approach to working with the Legislature and Governor to meet the council’s objectives regarding ensuring sufficient funding necessary to support courts being open and accessible every business day of the year. This approach should consider all viable ongoing, limited-term, and one-time funding solutions (including transfers of funding from construction fund monies where such transfers would not impact the timing and scale of planned facility projects) as a means to achieve financial stability for all 58 of the state’s superior courts, especially during the next three fiscal years; and
“2. Not proceed at this time to advocate for the redirection of substantial ongoing funding from the Immediate and Critical Needs Account within the State Court Facilities Construction Fund to offset reductions to trial court operations, as proposed by the Superior Court of Los Angeles County. This approach would too narrowly focus on one solution, an option that could significantly impair the ability of the branch to address critical facility needs in courts throughout the state for years to come.”
The McCoy Plan warrants close attention. While it is clear that George is willing to build courthouses even if courtrooms and courthouses are at the same time being shuttered, McCoy’s latest message is that money can be transferred from the construction fund without impairing construction.
In his address at the Levitt & Quinn event, McCoy recited that in 2008, the Legislature enacted SB 1407 which authorized $5 billion in revenue bonds to fund 41 projects for renovating or building courthouses. The bonds did not need voter approval, he noted, because a funding source was created: court fines and fees, collected as of Jan. 1, 2009.
“In the first year, we collected $280 million statewide, and in Los Angeles, we collected $80 million, just here,” he said.
(As an aside, he mentioned that only $30 million of the $80 million collected here will go toward constructing the five additional courthouses this county will get, and that “[o]ver the period of 30 years, over a billion-and-a-half dollars will come out of Los Angeles to build courthouses in smaller counties around the state.” But, he acknowledged, L.A. County did agree to that.)
Here’s the most significant part of his message:
“The bonds themselves will not be sold for at least three more years. But in the meantime, that revenue stream is being collected.”
Once the bonds go on sale, he declared, the revenues then flowing from fines and fees will be “sufficient to support those bonds…without using any of the income stream that is currently being collected.”
The white-haired McCoy, who was no doubt skilled as a lawyer putting his case to a jury, personalized the situation, telling the lawyers assembled:
“It’s like you: You’ve got an income stream right now. But if you could buy a house with a mortgage, with nothing down, you could keep everything you make up until the time that you take out the mortgage.”
McCoy added that “[a]ll that $280 million” from 2009 “is just stacking up” and the take by the end of this year is “going to be about $500 million—$500 million just sitting there.”
He spelled out:
“Three years of collections times 280 is three-quarters of a billion dollars.”
Continuing…
“The treasurer is not going to sell them all at one time. They’ll be sold a third, maybe, one year, a third the next, and a third the next. In each one of those increments, there will be collections that don’t need to be used. So ultimately, you’ve got probably a billion dollars right there that doesn’t need to be used.”
He insisted there are “piles of money available and it would absolutely save your court.”
Of course, once the bonds do go on sale, and fines and fees have to be retained in the account that backs up the bonds, the McCoy Plan would no longer be viable. By that point, it is to be hoped, the economy will be on the upsurge, and that trial court operations will be fully supported by direct appropriations, and not be dependent upon SB 1407 funds. However, if taxes on businesses remain high and restrictions continue to be stifling, it is probable that businesses will continue to be staggering, unable to provide new jobs, and that the economy will still be anemic.
If the choice does come down to building courthouses or maintaining court functions, the latter course is the only rational one. What was envisioned by legislators in enacting SB 1407 would be rendered impractical, and fees and fines would have to be otherwise used.
If there is a lack of safe, usable courtrooms in any locale, an obvious solution would be to institute split sessions in structurally sound, existing courtrooms…that is, reinventing “night court.” Too, courthouses could be used on weekends (with due regard to religious objections which a few individuals would raise).
Scads of cases could be resolved by civil trials being conducted in summer months in unused schools, with lawyers serving as pro tem judges (as under the Los Angeles Superior Court program), and with litigants lured to such a project to gain quick access to a “courtroom.” Inter-governmental cooperation would, it might be expected, minimize costs in leasing facilities. There would, of course, be no cost in connection with use of any state-owned buildings.
Law firms and law schools would surely lend space for short-cause matters.
Given the existence of deteriorating court facilities in various parts of the state and an economy that does not rationally permit repair or replacement of them, an effective chief justice would be scouting for alternative sites for court proceedings, rather than clinging to an agenda of court construction and computer improvements no matter what the consequences for the day-to-day operations of superior courts.
The Los Angeles Superior Court is fortunate to have at its helm an able individual who is not only capable of articulating the court’s position with clarity and forcefulness, but willing to trek to this venue and that to do so.
The alternative to speaking out is to roll over and play dead. The Superior Court, to its discredit, acquiesced a decade ago when George wanted the judges to vote for unification; they didn’t want to, but did, in light of promises of no more fiscal woes.
McCoy is doing what has to be done, and doing it well.
In his talk in Westwood, he extended an olive branch to George, saying:
“In the end, I choose to believe, reasonable minds will come together to solve this problem because the alternative is unthinkable.”
It remains to be seen whether the chief justice will be reasonable, or intractable…whether he is of the mind to compromise, or, as those who dub him “King George” perceive, determined to rule.
Copyright 2010, Metropolitan News Company