What It Will Take
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Judges Split Over Halting Courthouse Construction

May 21, 2012

While Gov. Jerry Brown due to budget difficulties wants to save $240 million by delaying new court construction, members of both the establishment California Judges Association and the influential splinter group Alliance of California Judges are divided over whether to halt the construction projects, reports the Daily Journal.

Many judges from the smaller courts around the state are pushing for the continuation of the building projects financed by the courthouse construction fund, which takes in some $321 million annually in court fees and penalties. But judges from larger courts want to use the money to keep existing courts open. All fear that like last year, the state will divert the funds to pay for its general obligations. Already, Brown, in addition to halting court construction, is pushing to cut $544 million from the trial courts and $300 million from their reserves, reports the Sacramento Bee.

What It Will Take

Seven perspectives on how to solve California's court crisis

November 2011

Jake Flaherty




The budget crisis that is now hitting California's court system is unprecedented. With courthouses being shuttered all over the state and normally cool-headed leaders using words like "crippling" and "devastating" to describe the cuts passed by the Legislature this summer, the very survival of the judiciary as a functioning branch of government is at risk. Still, as Mark Twain once observed, although "history doesn't exactly repeat itself, it does very often rhyme." And, true to Twain's adage, there are instructive similarities between the current crisis and events in the not-too-distant past.

Twenty years ago, the Commission on the Future of the California Courts came together under eerily familiar circumstances. The state's economy was stuck in a stubborn recession, public resources were scarce, and courts in the hardest-hit counties were struggling to conduct business. Of course, the current crisis is not a direct reprise of those earlier troubles. It is, if anything, a massive amplification of them: If the courts suffered a minor temblor in the early '90s, they are facing a Loma Prietascale cataclysm today. But as another sage commentator once said, crisis begets opportunity. Today's difficulties may dwarf those of the past, but so do the chances for meaningful reform.

Two decades ago the commission's landmark report, titled "Justice in the Balance 2020," proposed many controversial reforms. Although many had long been opposed by powerful factions in the state, a good number eventually made their way through the political process and into law precisely because of the economic downturn and funding shortages: Everyone recognized that the status quo was no longer tenable. That same willingness to consider unusual, even radical shifts in direction could be a factor in today's crisis. Indeed, the one thing everyone seems to agree on in our increasingly fractious judicial branch is that something has to change. And so, to capitalize on that point of fragile consensus, California Lawyer invited a group of prominent figures in and around the state's court system to share their best ideas. We asked them to think big, and they did not disappoint.

Rising Above Acrimony
by Justice Judith McConnell

Like all of government, the courts are being forced to undergo severe and perhaps permanent contraction. This is creating an atmosphere of insecurity and even hostility within the branch that is very painful to witness. We have to find a way to rise above the acrimony and focus on what should be our primary goals-minimizing the impact of this contraction on the public's access to justice and maintaining the high quality court system we have worked so hard to build.

The first point I'd like to make is that we have to maintain statewide funding of the courts. Since we instituted state funding for the 58 different county court systems in the mid-1990s, we have enjoyed much more stability as a branch, despite what we are going through right now. This has been particularly true for many of the less populous counties in the state. I can recall that, in "the bad old days," some of the smaller counties were so poverty stricken, they had to house their court facilities in trailers. State funding has changed all of that and improved their ability to serve the public.

On the other hand, many of those same smaller counties do not necessarily need the full panoply of administrative functions that they have today. We have to be smarter about how we spend our money-even if it means thinking beyond the boundaries of county lines and creating larger, more regional administrative areas in the state. Given the drastically lower funding levels we are seeing now, and are likely to see in the future, we cannot afford for every county, no matter how small, to employ its own jury commissioner and clerk administrator and information technology staff.

Along those same lines, we need a more regional approach to the branch's judicial functions as well, so that those courts with excess capacity and resources can help those that are suffering backlogs. A few years ago, Riverside County was experiencing a huge criminal caseload and was having a very difficult time coping. A strike force of judges from all over the state, both active and retired, came down and helped them get caught up. That kind of collaboration and reallocation of resources is something the branch is going to have to do more of in the coming years.

We should also look at ways we can improve the way justice is administered in our courts. When I was a juvenile court judge, it used to upset me a great deal to see child molestation cases receive a mere hour or two in front of a judge while, down the hall in superior court, auto accident cases involving minor soft-tissue injuries enjoyed multiple days of trial in front of full juries. We cannot let this crisis exacerbate those kinds of inequities any further. Just as judges went into Riverside County to help alleviate the crisis there, I would like to see more of my colleagues on the bench serving the areas of most need-even if it means they have to put time into the less "prestigious" levels of the system like family or juvenile courts. I have also long felt that judges in those courts should receive additional compensation.

Another area ripe for improvTHis ment is the jury system. In the wake of the O. J. Simpson trial, I served on a commission for jury improvement. We came up with several recommendations that were not adopted, mainly for political reasons. I believe it would be worth taking a second look at these proposals now, especially those involving voir dire and the selection of jurors. California courts see more peremptory challenges in felony cases than most other states in the country. Often in matters like DUI cases, the jury selection process takes longer than the trial itself. That is simply unacceptable, not to mention incredibly costly. The commission proposed capping the number of challenges. This would be an opportune time to revisit that idea.

Despite our failure to reduce the number of peremptory challenges, the jury improvement commission did manage to overcome strong opposition around the state and implement needed reforms such as one day, one trial jury service. It was not easy. Many counties fought these changes tooth and nail. The process required patience and determination, but in the end the reforms went through and the public was well served. We are going to need that same kind of dogged leadership today to get through this difficult time.

Justice Judith McConnell is the administrative presiding justice of Division One of California's Fourth District Court of Appeal in San Diego.

Ensuring Justice for All
by Paul D. Henderson

My biggest fear in this crisis is how it will affect the least represented members of society. My fellow attorneys and I will find our way through this difficult time. We know how to negotiate the system, and even if it changes for the worse we will continue to use the courts to accomplish our work. But what happens to people in the state of California who do not have the resources and the training we have? What will access to justice look like for them? That is the lens I look through when I contemplate the future of our legal system.

I am also concerned about possible misperceptions regarding this crisis. Specifically, just because the civil courts will bear most of the cuts, that does not mean the result will be only relatively minor inconveniences like delays in lawsuits, traffic disputes, or divorce proceedings. From my work as a prosecutor, I realize that the criminal and civil courts are intrinsically tied together in ways that people often don't understand. The guardian ad litem process is a perfect example. Guardians ad litem have helped serve the needs of thousands of abused or neglected children. If the civil courts are unable to make these appointments in a timely manner-or, God forbid, discontinue them altogether-many of those children will suffer as a result, and a good number will almost certainly wind up in the criminal court system.

With these facts in mind, I believe every cent in the judicial budget has to be spent on maintaining services. That means funding for things like capital improvements should be frozen or even reallocated. Believe me, I am acutely aware that some facilities in this state are in desperate need of renovation or replacement. I worked for years at the Hall of Justice in San Francisco where the lawyers I managed at the district attorney's office sat three and four to an office, without computers, while asbestos fell like black snow from the ceiling. That building should have been replaced 20 years ago. But we cannot afford to spend money on building projects in some counties at a time when we are closing down courthouses in others.

Over the longer term, we have to find new approaches for saving money and also for generating revenue within the branch. At this writing there is a massive patent infringement case going on in San Francisco Superior Court with billions of dollars at stake, and yet the fee for filing that lawsuit was only $800. I will not propose specific dollar amounts, but I do believe a sliding-scale fee system is long overdue. In terms of savings, there are many jury trials that, quite frankly, should not take up weeks of valuable court time. The federal courts have implemented an expedited jury trial program. I don't see why we shouldn't put a similar program in place in the state system, as well.

Ultimately, though, we are also going to need legislative solutions to these problems. One idea is to draw revenues from other areas of state government that benefit from the work of the courts. For instance, the California Department of Motor Vehicles relies on the judiciary to administer and prosecute things like traffic violations and DUI offenses. To help pay for those services, some portion of vehicle licensing fees should be transferred directly into the court's budget. Whatever proposals wind up on the table or off the table, there has to be a new commitment from the Legislature, the Administrative Office of the Courts (AOC), and Governor Brown to keep the courts fully funded. For average citizens, the role the judiciary plays is far too vital to try and dispense ten-dollar justice with a twenty-five-cent budget. I hope our political leaders, and the rest of the state, do not have to learn that fact the hard way.

Paul D. Henderson is a former prosecutor and chief administrator in the San Francisco District Attorney's office. He is currently deputy chief of staff for San Francisco Mayor Ed Lee.

A Simple Question
by Justice Thomas Hollenhorst

To cope with our funding problems, we have to first be mindful of the core function of the courts, which is to decide cases. Across the board, whether it's the trial court, the appellate court, or the Supreme Court, we have to decide cases. Laying people off and closing down courtrooms cripples our ability to perform that core function. Yet, incredibly, that is what many counties are being forced to do while the Administrative Office of the Courts in San Francisco operates at almost full capacity. That is unacceptable.

I was in Chicago at a meeting of appellate judges a little while back and a justice from Missouri came up to me and said, "I hear you have almost a thousand people working at your administrative office in California. What in the world do all those people do?" Unfortunately, I was unable to give the gentleman an answer. In the grand analysis of this problem we are facing, I really do not think the solution is all that complicated. We as a branch need to answer that man's simple question so that we can be sure we are allocating resources in the best possible manner.

In these lean times, every single position at the Administrative Office of the Courts must be evaluated on the basis of one simple criterion: Is keeping an AOC position funded worth closing a courthouse? That may sound harsh but it reflects the draconian reality we have to confront: We simply cannot keep a surplus of administrative workers employed in San Francisco at the same time we are shuttering courthouses around the state. Period, full stop.

Here is an example of what I mean by a "surplus" of workers at the AOC. I have been involved in judicial education here in California and around the country for decades now. I work with the education division of the California AOC on statewide education programs and I also work with a national organization called the Appellate Judges Education Institute. The AJEI employs exactly two people, on a part-time basis, to coordinate education programs for roughly 1,200 judges around the country. By contrast, the AOC's education division boasts a staff of almost 100 employees to prepare and coordinate educational programs for approximately 2,000 state judges and court staff members. That's 50 times more people for not even double the number of participants!

Of course, I am not saying that trimming the education division's budget is going to solve all of the branch's problems. But the bloat in that department is a microcosm of the larger problem at the AOC. Over the past 15 years, the institution has absolutely mushroomed. And it's not just a matter of people, it's also programs and projects like the ruinous Case Management System. The state auditor recently put the cost of that boondoggle at nearly $2 billion. (It was initially supposed to cost "only" $260 million.) Ideally, we should reform or even dismantle the centralized funding regime that has fed this bureaucratic expansion altogether. My colleagues in the Alliance of California Judges are working toward that end with initiatives like AB 1208, the Trial Court Bill of Rights. But in the meantime, wasteful programs should be stopped in their tracks and a robust, transparent, and top-to-bottom audit of staffing and spending at the AOC should be completed as soon as possible.

Finally, we must democratize the Judicial Council. In recent years the vast majority of votes by the council have been unanimous. That kind of lockstep thinking is directly responsible for the AOC's unchecked growth. Many other states in the country elect their judicial councils based on region or position. If we really want to get to the roots of our problems and bring meaningful reform to the branch, we should adopt similar rules. We need to ensure that our leaders truly represent our best interests, not the interests of bureaucrats in San Francisco.

Justice Thomas Hollenhorst is an associate justice in Division Two of California's Fourth District Court of Appeal in Riverside and a founding member of the Alliance of California Judges, which advocates for a return to county-level funding of the court system.

Looking Forward
by William C. Vickrey

It is not surprising that, in this time of economic uncertainty and unremitting budget reductions, some people in the judicial branch would like to turn the clock back to what they perceive was a more ideal time. They believe that a return to local funding of the courts would solve our problems. But this nostalgic thinking does not paint an accurate portrait of what things were really like when I first arrived at the Administrative Office of the Courts in 1992, before we achieved state funding for the courts.

In those days, California's court system was a "system" in name only. In reality, it was a patchwork of some 220 different jurisdictions with entirely different rules, services, filing fees, and priorities. The public's access to and experience of justice varied dramatically from county to county. Most important for our current situation, we cannot forget that county-level funding did not insulate the courts from bad economic times. In the recession of the early 1990s, for instance, courts closed on a random basis across the state, clerks' office hours varied, and one court even had to sue its county in an attempt to secure adequate funding.

There is no doubt in my mind that the only way to handle our problems is by moving forward, not backward.

Our first priority has to be the stabilization of the judiciary's budget. In our system of government, the executive and legislative branches are codependent on one another in budget negotiations and policy; each has political leverage over the other to influence budget outcomes. The judicial branch, however, does not wield this kind of political or budgetary power. As a result, it often gets the short straw. For example, in the current year, the judicial branch budget, which represents 2.5 percent of the overall state budget, endured a full 7 percent of the $15 billion in cuts enacted. Without further action, the courts will face a staggering $588 million in further reductions in the coming year-a truly unsustainable blow.

The administration of justice is not a luxury budget item, to be funded adequately only during good times. And yet, that is how our political leaders have been treating it. We must convince or, if necessary, compel the Legislature and the governor to fund the courts as a truly equal branch of government. If we cannot achieve this rightful status through statutory means, perhaps it is time to go directly to the public and make our case via the ballot initiative process.

Even if funding is equalized, the courts, like all of government, still will have to contend with shrinking budgets for the foreseeable future. That means we should use this turbulent time to consider cost-saving reforms. These could include shifting responsibility for the maintenance of local courthouses to the state trial courts, and sharing jurisdiction of capital cases with the Courts of Appeal based on a case-by-case review. Consideration might also be given to merging the State Public Defender's Office, the Habeas Corpus Resource Center, and the California Appellate Project into a single entity under the executive branch, and beginning the habeas process at the trial level instead of at the appellate level.

Further savings could be realized by giving judges more authority to reduce certain misdemeanor charges to infractions, expanding mediation services, and exploring new kinds of disposition procedures for nonserious traffic infractions.

Finally, technology will certainly be a key tool for modernizing and streamlining our practices. Experience with new case-management systems in appellate and trial courts has shown that there are tremendous opportunities not only to achieve efficiencies within the courts but also to contribute to the effectiveness of the larger civil and criminal justice system.

None of these suggestions is simple, inexpensive, or easy. Each will require careful analysis, strong leadership, and the commitment of resources. In short, they will require good government. But democracy is not a sport for the short-winded, and court reform that protects the values of our justice system and ensures its future is a cause well worth the effort.

William C. Vickrey recently retired as administrative director of California's Administrative Office of the Courts in San Francisco.

This Time Is Different
by Judge Terry Friedman, Ret.

For the past several years, state and local judicial leadership has weathered a series of budget cuts by employing relatively modest, often temporary, fixes. But this time is different.

I know firsthand that many of the proposals I lay out here are politically controversial, as each threatens entrenched and powerful constituencies in the state. In fact, during my eight years in the California Legislature, I opposed some of them myself. But circumstances have changed, and so has my thinking. The prospect of a crippled judicial branch calls for creative and courageous leadership. We all have to consider solutions that may have seemed unacceptable in the past. Here are some things to think about:

* Jury trials are costly in both money and time. Many commentators have proposed ways to cut some of those costs without violating vital Sixth and Seventh amendment principles. Ideas include using bench trials for charges that carry sentences of less than six months, and allowing split guilty verdicts from a twelve-person jury. Also, the smaller the jury, the less time it takes to select (as in federal court, where six-person juries hear most civil cases).

* There have been only 13 executions in California since 1978, when voters reinstated the death penalty. Yet the state has spent about $4 billion to administer capital punishment. At a time when our courts may be unable to expeditiously handle all domestic-violence-related cases, can we justify spending $120 million annually on court, incarceration, attorney, and related costs to execute one murderer every other year?

* The biggest single operational expense for courts is security. Yet the courts have no authority to manage this budget item. If the judiciary were able to contract with security services, or to create its own, as in New York state, the branch could save huge amounts of money every year.

* A significant number of civil cases and jury trials concern automobile accidents where less than $25,000 in damages is at stake. Substantial court costs could be avoided if these cases were removed from the courts and replaced with a no-fault insurance system.

* Even a modest tax on fees for legal services would generate hundreds of millions of dollars for the courts. Washington state imposes a small, 1.5 percent rate, and its legal system has not suffered.

* Despite advances in low-cost digital technology, our courts still rely on expensive manual court reporting. Replacing court reporters with a digital system could save California millions. This is one of the proposals that I strongly opposed as a legislator, and I am still troubled by the layoffs that could result. But to see ourselves through this crisis, these are the kinds of tough choices we are going to have to make.

Of course, the judicial branch cannot expect the attorneys, sheriffs, court reporters, and others who would bear the brunt of these reforms to accept such bitter medicine alone. Saving our court system is too important for any group to expect that "the other side" will make all the sacrifices and compromises. The Judicial Council and Administrative Office of the Courts must reduce state court spending as well. With that in mind, Chief Justice Tani Cantil-Sakauye has demonstrated strong leadership by appointing the Strategic Evaluation Committee to investigate how to cut costs in court administration. Some critics believe that slashing the AOC and returning to a county-level funding model will magically solve our problems. This would be a huge mistake, as it would actually undermine the financial savings and greater access to justice we have achieved through state court funding, court unification, and state control of courthouses. Despite our current financial troubles, the judicial branch should not undo the meaningful reforms we enacted in recent years.

Terry Friedman is a former member of the state Judicial Council and a private arbitrator, mediator, and referee with JAMS. Last year he retired as a Los Angeles Superior Court judge, and he previously served in the state Assembly.

Past Is Prologue
by Roman M. Silberfeld

Cuts to the state court budgets have created real problems for my clients. For the past several years, everything has been grinding slower and slower. And with these latest cuts, things are coming very near to a standstill. Two and half years ago one of my clients filed a lawsuit that is still in limbo. It involved a relatively straightforward business dispute that should have been over by now, but instead its resolution hasn't even begun.

I've been around long enough to have seen this cycle before. Back in the early '80s the courts were having similar troubles, and cases were routinely taking five, six, maybe nine years to get to trial. And even after you had a trial date, there were problems. You would report to the courthouse and the clerk would hand you a beeper and say, "We'll beep you when a courtroom opens up." Often, that beeper wouldn't go off for weeks or even months-and this was after you'd already waited years just to start trying your case!

Back then, a group of about 30 trial lawyers volunteered as settlement officers to help ease the strain on the system. By resolving straightforward cases like auto accidents and simple contract disputes, we were able to clear the court's docket for more complex litigation. My colleague and friend Thomas Girardi and I are in the process of recruiting a new crop of distinguished lawyers to act as volunteer mediators. As attorneys, we owe our livelihoods to the judicial system. The least we can do is give some of our time now to help it through this latest crisis. I am not sure if this kind of effort could be successful in other counties, but it is definitely something for leading attorneys around the state to consider organizing.

Of course, a group of lawyers volunteering once or twice a month is not going to solve the larger problems the judiciary faces. We are also going to need larger, structural reforms. As a plaintiffs attorney, I know that not all of these ideas are going to be terribly popular with my colleagues. But in light of the massive challenges we are facing, every possible solution should be considered.

We have to find efficiencies in the judicial branch, ways to do more with the same amount of hours and staff. Judicial specialization would be one way to do this. In Los Angeles, a single judge used to handle all the asbestos cases. Then, 20 years ago, someone made the decision to spread the cases around. Suddenly we had a number of different judges who had to learn this unique body of law. That kind of redundancy costs valuable time and money. Perhaps it is time to assign judges to cases based on their experience and their fields of expertise. The state of Massachusetts has courts devoted solely to business disputes. We could adopt a similar approach and even expand into areas like employment or tort law.

Another proposal worth considering is changing the jurisdictional limits of the superior court, where the backlog is greatest. Maybe that court should be reserved for cases in which truly large sums of money are at stake. We could create another stratum of courts where the amounts in controversy fall between $5,000 and $100,000-a kind of super small-claims jurisdiction. As in small claims, limits would be placed on discovery, and cases would be decided by the court instead of by juries. But unlike in small claims, the parties would be allowed to retain lawyers.

Finally, the courts should do all they can to move cases through the system as quickly as possible. I was involved in a large and very complex intellectual property case in federal court last year. The judge gave each side exactly 30 hours to try the case. She even used a chess clock to track our progress. Needless to say, we were a little put out by this restriction, but in the end both sides managed to put on all the evidence and make our arguments within the allotted time.

Another way to speed up cases would be eliminating needless procedures. It may pain some of my fellow attorneys to hear this, but let's be frank-demurrers do nothing but gum up the system. Many of my friends on the bench agree. Perhaps we can use this crisis as an opportunity to reevaluate these sorts of unproductive processes, if not the entire manner in which we conduct business. Who knows, we might even be better off in the end for having gone through this crisis.

Roman M. Silberfeld is a managing partner at the Los Angeles office of Robins, Kaplan, Miller & Ciresi.

Balancing the Scales
by Gray Davis

Difficult times demand a careful reexamination of the way limited resources are allocated within government, our state's judiciary being no exception. However, we must remember that the judiciary is a coequal third branch of government. Moreover, it is the only fail-safe mechanism our democracy has to ensure that fundamental liberties and rights are protected.

As a citizen of our great state, I was stunned this last year to see many courts shut down during normal business hours. Apart from the practical impacts, which shouldn't be overlooked, the symbolism that our justice system was essentially "closed for business" was demoralizing.

No one single reform can solve all the judiciary's problems. But I believe there are meaningful reforms the state can pursue which will significantly improve the current situation.

First, the State Bar of California and trial courts ought to come together to devise a voluntary program where senior litigators in California sit pro tem for a meaningful period of time to help resolve the backlog of disputes.

Second, all complex litigation courts should be financially self-sustaining, funded exclusively by the business litigants who appear before those courts. This approach will not only free up critical resources, it will also help speed cases through the system. As governor, I was pleased to work with former California Chief Justice Ron George to design and fund a pilot program for complex litigation courts that are housed within county courts. Their mission was to resolve complex cases between business litigants. The program has proven effective at easing civil dockets and providing litigants with a dedicated corps of judges to handle the often intricate details of complex cases. I'd propose that to the greatest extent possible, this program be expanded.

Third, our courts ought to be permitted to retain all non-victim-based fees and fines without any possibility of reallocation. I've seen firsthand how state budget gaps get closed, often through reallocations. Because of the judiciary's unique and coequal status, we simply must guard against any such raids.

Fourth, the Judicial Council and the AOC, as the governing body over state courts, ought to have two primary functions: deciding how to properly allocate general fund dollars among the 58 counties, and establishing only overarching general policies of statewide interest. They should leave the bulk of the spending discretion to individual counties. From my perspective, local courts clearly have a stronger sense of their individual needs and are better equipped to identify opportunities for efficiencies and savings.

Sacramento tends to favor one-size-fits-all solutions. Case in point, why should any remote bureaucrat dictate who switches the light bulbs for individual courts? Trivial as this example seems, the truth is county courts aren't given the flexibility to make these or similar types of decisions.

These common sense reforms should be weighed carefully, but also expeditiously. Politics is the art of the possible, as they say, and one of the benefits of a crisis is that it expands the range of solutions people are willing to consider. Smart leadership takes advantage of this. With the right choices now, our judiciary could emerge from this troubled period as a stronger, more effective branch of government.

Gov. Gray Davis, California's 37th chief executive, is currently of counsel to Loeb & Loeb in Los Angeles.

J. B. Powell is a freelance writer in San Francisco.

Reader Comments

Gary Weiner - November 8, 2011
Interesting to see what these folks have to say. I would find it much more interesting, though, and potentially more useful even, for you to speak to the people who actually work every day in the courts themselves. Talk to clerks, court reporters, bailiffs, research attorneys, probate examiners and ADR folks. In the private sector, engagement with line level employees (total quality improvement programs, etc.) have, I believe, been shown to be invaluable in helping to improve service and efficiency. The judiciary and the AOC might take a page out of the playbook of the most enlightened private sector employers and talk to the people who do the actual work about what they think might help.

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