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Thursday, January 14, 2010

Disorder in the Courts - California Budget Pressure

"For the first time in our history, the courts of our state have been ordered to close for budget reasons, something that did not happen even during the great depression. The judiciary is in a state of crises." -- San Mateo Superior Court Judge Mark R. Forcum.

Disorder in the Courts
By Larry Stirling

He is right. The courts are in a mess that has been accumulating for a long time.

Judge Forcum is leading a new organization of fellow jurists called the Alliance of California Judges.

Another group, The California Judges Association, has been in existence for many decades.
The CJA's staid, passive and genteel persona has long served the social needs of the judiciary, but it has never been a force for judicial reform.

Judge Forcum and his initial 180 members are to be congratulated for trying to come to the aid of the local judiciary, the legal profession and the public that they are trying to serve.
Signing on to this new group is not an easy decision for judges.

Article 6, Section 4 of the State Constitution makes it clear that while the quality of justice is in the hands of the judiciary, the quantity (e.g. budget issues) of justice is a legislative decision.
Once the budgetary levels are established, it is up to the judiciary to manage those resources as efficiently and as effectively as possible.

The legislature reserves the power to bring about major reforms such as those I carried out at the suggestion of various judges.

For example, California used to have three levels of trial courts. This resulted in inefficiencies and geographic holes in judicial services around the state.

Through successful constitutional amendments authored by me and by Sen. Bill Lockyer, the three levels of trial courts were "unified" into one allowing the presiding judge to allocate resources to workload hot spots while simultaneously reducing overhead, variegation in rules and forms, and cultural differences among local courts.

In addition, I carried laws putting judges back in charge of their courtrooms such as lawyer sanctions, "fast track," judge voir dire and others that brought about dramatically faster civil-case disposition times: too fast many lawyers complained.

Other laws eyeing efficiency included civil restitution orders by criminal judges which negated the necessity for victims to file separate civil suits and the elimination of the troublesome "partition ratios" in DUI trials which shortened the duration of those plentiful hearings.

Instead of banking those savings and applying them to the overdue project of court automation and facilities improvements, the Judicial Council, a body mostly hand-picked by the chief justice undertook a campaign of suborning the authority of the local courts and gathering it into the hands of the Judicial Council and its ballooning San Francisco staff.

It is reported that while local courts had to leave public-serving positions vacant, the Judicial Council accumulated a gang of around 900 highly-paid employees, few of whom ever worked in a courtroom.

That bureaucracy became a stultifying presence, providing exactly no memorable good ideas and blocking a dozen that I personally sent in for recovering the billion or so dollars in (still) uncollected fines and child support.

Using revenues that San Diego began collecting after they implemented my idea of using private collection agencies to retrieve court fines rather than issuing useless arrest warrants, San Diego aggressively undertook to automate our courts.

The bureaucrats in San Francisco objected to the local initiative and instead imposed a one-size-fits-all computer system from the top down. All reports are that it is a billion-dollar fiasco.
Court employees today are routinely required to work overtime and into lunch hours as a result.
Article 6, Section 6 subparagraph (d) specifically limits the role of the Council to "...survey judicial business and make recommendations...," a clear limitation on their authority.
Instead they have acted like a governing body, usurping the plenary power of the local elected judges by keeping resources for themselves.

While the nest feathering in San Francisco was going on, local hiring was frozen, the courts were ordered closed one day a month, and judges were goaded into "volunteering" to give up some of their pay in spite of the clear language of Article 3, Section 4 of the Constitution.
There are good reasons for that provision. We don't want our judges to be "goadable" by anyone, not even the judicial council.

It is true of all bureaucracies. They eventually metastasize, i.e. grow dramatically at the top.
That is why governments continue to get more expensive but provide less service. The only thing unique about the court situation is the blazing speed at which it occurred.
Thus I wish the new Alliance of California Judges every success in these same goals. But of course, none of this would be necessary if the legislature correctly provided for the "quantity of justice" that is their constitutional duty.

Stirling, a former U.S. Army officer, has been elected to the San Diego City Council, state Assembly and state Senate. He also served as a municipal and superior court judge in San Diego. Send comments to Comments may be published as Letters to the Editor.

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