No on Proposition 220

Wednesday, Feb. 18, 1998

Page 8

EDITORIAL

No on Proposition 220

SCA 4, approved by the Legislature, will appear on the June 2 ballot as Proposition 220. Should it be enacted by voters, trial-court consolidation could be effected in any county by a majority vote of that county's Superior Court judges and a majority vote of its Municipal Court judges.

We oppose the measure. We do so without addressing the issue of whether the trial courts ought to be consolidated — because that is not the issue before voters.

Rather, the issue is twofold: whether trial court unification should be determined on a county-by-county basis, and whether the decision should be left to judges. We believe the answer should be "no" and "no."

In 1994, SCA 3 failed in the Assembly. It would have mandated trial-court consolidation in every county. SCA 4, by contrast, provides for county option (as did the ill-fated ACA 36, rejected by voters in 1982). We see no merit to local determination of this issue. There is a statewide court system. The benefits of consolidation — e.g., cost-savings and boosted efficiency — either do or do not outweigh the advantages of the present system — such as having a "training ground" where less experienced lawyers, handling less significant cases, can develop judicial skills. The pros and cons are simply no stronger or weaker in one county than in another. Art. VI of the state Constitution either should be amended to provide for a single trial court, if that would best suit the needs of the people, or should be left unchanged.

Even if there were to be local option, the decision as to the form of the courts, as we see it, should be left to the voters of the respective counties, or to their elected representatives. Proposition 220, however, would delegate the decision to the county's judges. Judges are elected to serve the people, but not to represent them, not to carry out their political desires.

That is to say, judges are hired to apply law — not to make it.

If a change is to come in the structure of the court system in any given county, and is not effected by a vote of the people, it should be brought about by those who have been elected to represent the people in making policy determinations. That's the Board of Supervisors.

Art. III, Sec. 3 of the state Constitution provides: "The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution."

Proposition 220 would create such an exception. Principal among the changes would be an amendment to Art. VI providing:

"[T]he municipal and superior courts shall be unified upon a majority vote of superior court judges and a majority vote of municipal court judges within the county. In those counties, there shall be only a superior court."

In our opinion, this tinkers, unwisely, with the separation of powers doctrine.

We believe the question of whether the Constitution should be amended to create a single trial court in each county should be put to the electorate. Proposition 220 does not bring that ultimate question before the voters. Rather, it asks them to delegate their decision-making powers to their local judges, on a county-by-county basis.

Proposition 220 asks the wrong question, and should be defeated.

If Proposition 220 is shot down, and while we wait for the right question to be put on the ballot — as SCA 3 would have done — it will hardly mean that municipal and superior courts will operate each in isolation from the other. Trial court efficiency is being boosted through mandatory coordination under Government Code ñ68112 and through blanket cross-assignments by the chief justice (upheld in People v. Swain (1995) 33 Cal.App.4th 499 and People v. Najera (1979) 88 Cal.App.3d 930).

It might be that experience will show that this is all that is needed to achieve the goals sought by proponents of Proposition 220. Or it might be that the more the courts become coordinated, the greater will be the push for consolidation. (In a few counties, the distinction between superior and municipal court judges is merely one of title and salary, causing local lawyers to proclaim that their counties' trial courts have been merged.)

One additional aspect to Proposition 220 that warrants attention is an anomoly it would create. At present, a requirement for election or appointment to the municipal court is five years' membership in the State Bar. For the superior court, it's 10 years. Under Proposition 220, present members of municipal courts in counties that opt for a unified bench who gained their bar cards less than a decade ago would be "grandfathered," and would be elevated; prospectively, however, the 10-year requirement would apply. This would mean the minimum qualifications for election or appointment to the bench in some counties would be five years of State Bar membership (for the municipal court), and in some counties, it would be 10 years (where no municipal court existed). For lawyers with five years under their belts but less than 10 years who desired judgeships, there would be forced carpet-bagging.

Proposition 220 is a compromise measure that deals with trial court unification in a slap-dash way. We urge a "no" vote on that proposition, and that the electorate be given the opportunity to address the issue squarely through a measure more along the lines of SCA 3.

ARTICLES ON TRIAL COURT UNIFICATION