BILL ANALYSIS                                                                                                                                                                                                    



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          CONCURRENCE IN SENATE AMENDMENTS
          AB 2321 (Hertzberg)
          As Amended June 29, 2002
          Majority vote 
           
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          |ASSEMBLY:  |72-0 |(May 16, 2002)  |SENATE: |39-0 |(August 12,    |
          |           |     |                |        |     |2002)          |
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           Original Committee Reference:    JUD  . 

           SUMMARY  :  Clarifies and creates new procedures under which tort  
          claims against judicial branch entities are presented.   
          Specifically,  this bill  :

          1)Establishes the Judicial Council (JC) rather than the Victim  
            Compensation and Government Claims Board (formerly known as  
            the Board of Control) as the governing body authorized to act  
            on claims and actions filed against a judicial branch entity  
            or judge thereof.

          2)Defines "judicial branch entity" as any superior court, Court  
            of Appeal, the Supreme Court, the JC, or the Administrative  
            Office of the Courts (AOC).

          3)Authorizes the JC to delegate its authority to act on claims  
            and actions to any committee of the JC or employee of AOC.

          4)Specifies that claims and actions shall be presented by  
            delivering or mailing the claim to, or serving the action on,  
            the court executive officer if the claim is against a superior  
            court or judge thereof; to the clerk/administrator of the  
            Court of Appeal if against a Court of Appeal or judge thereof;  
            to the clerk of the Supreme Court if against the Supreme Court  
            or judge thereof; to the Secretariat of the Judicial Council  
            if against the JC or AOC.

          5)Authorizes the State Controller to pay claims, settlement, and  
            judgments arising out of the activities of a judicial branch  
            entity or judge thereof upon certification by the  
            Administrative Director of the Courts that sufficient funds  
            for payment exists from funds allocated for such payment.

          6)Provides that if sufficient funds to pay settlements or  








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            judgments do not exist, the Administrative Director of the  
            Courts shall report the settlements and judgments to the  
            Legislature for the purpose of introducing legislation  
            appropriating funds for payment.

          7)Provides that if sufficient funds to pay claims do not exist,  
            the Administrative Director of the Courts shall report the  
            claims to the Victim Compensation and Government Claims Board  
            (Board), which may object to payment.  If after conferring  
            with the Administrative Director of the Courts, the Board  
            withdraws its objection or if no objection is received, the  
            Administrative Director of the Courts shall report the claims  
            to the Legislature for the purpose of introducing legislation  
            appropriating funds for payment.

          8)Makes various technical and conforming changes.

           The Senate amendments  require the Administrative Director of the  
          Courts to report to the JC concerning any action she or he takes  
          or proposes to take to prevent the future occurrence of  
          circumstances similar to those upon which a tort claim was  
          bared.

           EXISTING LAW  :  
           
          1)Establishes the Board, formerly known as the Board of Control,  
            and authorizes the Board to act on tort claims filed against a  
            state agency.

          2)Directs the JC to adopt rules of court requiring the AOC to  
            manage actions, proceedings, and claims that affect the trial  
            courts and involve superior or municipal courts, superior or  
            municipal court judges, subordinate judicial officers, court  
            executive officers, or trial court employees in consultation  
            with the affected courts and individuals.

          3)Provides that the AOC's management of these actions,  
            proceedings, and claims shall include, but not be limited to,  
            case management and administrative responsibilities such as  
            selection of counsel and making strategic and settlement  
            decisions.

           AS PASSED BY THE ASSEMBLY  , this bill permitted the judiciary to  
          handle tort claims brought against it.









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           FISCAL EFFECT:   According to the Assembly Appropriations  
          analysis, no fiscal impact.  The JC indicates it has adequate  
          resources to manage tort claims filed against the judicial  
          branch.

           COMMENTS  :  The author introduced this bill to permit the state's  
          judiciary to more efficiently handle tort claims brought against  
          judicial entities.  As a general rule, a person bringing a claim  
          or lawsuit for money or damages against a public entity or a  
          public employee must comply with the requirements of the  
          California Tort Claims Act (TCA).  The TCA prohibits, with  
          certain exceptions, such a lawsuit unless the person first  
          presents a written claim to the governing board of the public  
          entity in accordance with the TCA.  The author notes that the  
          TCA distinguishes between local public entities and the state  
          and sets forth different requirements for presenting claims to  
          the former and the latter.  Historically, claims against a trial  
          court were presented to the county in which that court was  
          located.  Now, however, because of the relatively recent  
          separation of the trial courts from county governments, the  
          application of the TCA to the trial courts is ambiguous.  A  
          person wishing to present a claim for money or damages against a  
          trial court currently cannot determine with certainty where to  
          do so.

          According to the author, two statutes that took effect January  
          1, 2001, highlight the changing status of the trial courts and  
          the need for clarifying amendments to the TCA.  These are the  
          Trial Court Employment Protection and Governance Act, which  
          provides, for purposes relevant to this issue, that employees  
          paid from the court's budget are trial court employees, as  
          opposed to county employees, and Government Code Section 811.9. 

          Government Code Section 811.9 provides that trial court  
          employees are public employees, for purposes of the TCA.   
          Government Code Section 811.9 also made the JC responsible for  
          providing representation, defense, and indemnification of  
          judges, subordinate judicial officers, executive officers, and  
          employees of the trial courts.  As directed by that section, JC  
          adopted rule 6.800 of the California Rules of Court, which  
          requires the Office of the General Counsel (OGC) to manage and  
          administer a program for investigating and resolving all claims  
          and lawsuits affecting the trial courts.  Trial courts are  
          required to forward claims and lawsuits to the OGC for handling.  
           Among other responsibilities, OGC is required to select and  








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          direct outside counsel, in consultation with the affected trial  
          court and any represented individuals.  In addition, OGC is  
          required to:  1) make settlement decisions, in consultation with  
          the affected trial court and any individual defendant, where  
          payments would be less than $50,000; and, 2) make  
          recommendations to the JC's Litigation Management Committee  
          regarding proposed settlements requiring payments of $50,000 or  
          more, or involving important policy issues.  Rule 6.14 describes  
          the oversight role of the Litigation Management Committee  
          regarding such proposed settlements.  

          Although Government Code Section 811.9 gives the JC and OGC  
          responsibility for claims affecting the trial courts, it does  
          not state precisely how those claims are to be presented or  
          considered.  Under the TCA, claims generally are presented to a  
          "board," and the "board" acts on those claims.  The board for  
          the state is the Victim Compensation and Government Claims Board  
          (formerly called the Board of Control).  For local public  
          entities, it is the governing board of the entity.  Government  
          code Section 811.9 does not identify the trial courts as being  
          either the "State" or a "local public entity" under the TCA.  As  
          a result, it is unclear what "board" should receive and consider  
          claims.  This bill clarifies that issue by specifying that JC  
          shall serve in this capacity for tort claims brought against  
          judicial entities.  


           Analysis Prepared by  :    Drew Liebert / JUD. / (916) 319-2334 

                                                                FN: 0006013