BILL ANALYSIS Ó
AB 1208
Page 1
Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1208 (Calderon) - As Introduced: February 18, 2011
SUBJECT : TRIAL COURTS: THE TRIAL COURT RIGHTS ACT OF 2011
KEY ISSUES :
1)WHAT ARE THE PRINCIPAL SOURCES OF CONCERN THAT UNDERLIE THIS
MEASURE, AND WHAT ARE THE WAYS IT APPEARS TO POTENTIALLY
SUBSTANTIALLY ALTER EXISTING GOVERNANCE WITHIN THE JUDICIAL
BRANCH?
2)TO WHAT EXTENT SHOULD THE LEGISLATURE RESPECT THE REQUEST OF
THE NEW CHIEF JUSTICE TO ALLOW THE JUDICIAL BRANCH REASONABLE
TIME TO TRY TO ADDRESS INTERNALLY CONCERNS ABOUT ITS
GOVERNANCE?
3)GIVEN THE BILL'S FOCUS ON TRIAL COURT FUNDING AND TECHNOLOGY
ISSUES, MIGHT THERE BE SOME APPROACH TO THESE ISSUES ABOUT
WHICH THE COMMITTEE AND AUTHOR MAY CONCUR, SHOULD THE
COMMITTEE CONCLUDE THE GOVERNANCE PROVISIONS IN THE MEASURE
ARE UNTIMELY OR POTENTIALLY UNWISE?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This legislation contains a broad umbrella of provisions that
seek to substantially alter governance within California's
judicial branch by transferring new authority to local courts.
The bill is an outgrowth of severe discontent that has arisen in
recent years amongst an unknown number of superior court judges
and some trial courts, reflecting one of the most turbulent
periods in the judicial branch in many years. Supporters of the
bill, including some trial courts and an unknown number of
superior court judges, contend that the administrative and
governing arms of the judiciary, the Administrative Office of
the Courts and the Judicial Council, have allegedly
insufficiently respected the constitutionally-protected
independence of the trial courts. Amongst the measure's broad
substantive provisions, the bill sets forth that the "The
Judicial Council does not govern the trial courts. . . ," and
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appears to potentially shift at least some measure of authority
for spending judicial branch funds from the Judicial Council to
the trial courts; ostensibly granting each of the state's 58
individual superior courts a potential "veto" over the
implementation of a highly controversial case management
computer system, as well as the design, siting and construction
of new court facilities. Citing a laundry list of complaints
alleging mismanagement and perceived waste by the AOC, as well
as the alleged failure to enact a "Financial Management Bill of
Rights," the author states "The Legislature never intended to
strip the trial courts of their independence to manage
themselves."
The measure was introduced just over a month after California's
new and highly respected chief justice, Tani Cantil-Sakauye, was
sworn in to take the helm of the judicial branch. Opponents,
including an unusual coalition consisting of the California
Commission on Access to Justice, the Civil Justice Association
of California, the Consumer Attorneys of California, the
California Defense Counsel, the California Chamber of Commerce,
along with the Judicial Council, other superior courts and an
equally uncertain number of individual trial and appellate court
judges, contend that, in addition to risking the unraveling of
almost fifteen years of progress in unifying the state's courts
and improving Californians' access to justice through the
extraordinary leadership of the former chief justice, the
Legislature should respect the co-equal independence of the
judicial branch and at a minimum provide the new chief justice
reasonable time to try to address where appropriate governance
and funding concerns within the branch. As discussed below,
while the precise impact of many of the measure's provisions
appears unclear, it is clear the bill reflects strong discontent
amongst an unknown number of trial court judges within the
state's renowned judicial branch, both regarding the development
of a statewide case management computer system as well as what
proponents contend is a current imbalance of authority between
the administrative and governance arms of the judiciary and the
state's 58 trial courts.
SUMMARY : Would enact the Trial Court Rights Act of 2011, a
broad umbrella of provisions that seek to address governance and
funding within California's judicial branch. Specifically,
amongst other provisions, this bill :
1)Contains extensive legislative findings including but not
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limited to: (a) The Legislature has previously affirmed the
need for strong and independent local county court management;
and (b) the importance of having decentralized management of
the trial courts was recognized by the Legislature, and that
the Judicial Council failed to adopt a Trial Courts Bill of
Financial Management Rights as intended by the Legislature.
2)Provides that the Judicial Council does not govern the trial
courts.
3)Provides that each trial court shall have the independent
right and duty to manage its administrative and financial
affairs in accordance with its own policies, as provided by
its trial court management, if the court is in reasonable
compliance with accounting, audit, and budgetary standards
established by law.
4)Provides that each trial court shall be independently
empowered with all of the following powers, including, but not
limited: (1) To elect and maintain its own presiding and
assistant presiding judges, according to its own policies; (2)
To hire, maintain, compensate, and supervise its own executive
officer and other specified staff; (3) To enter into its own
contracts and agreements to provide for the security of its
court sessions, including negotiating and maintaining
contracts with local law enforcement agencies; (4) To retain
and employ its own administrative legal counsel; and (5)
Except as otherwise required by law, to maintain the schedule
of its own sessions at times and places as deemed prudent by
its presiding judge and trial court management, and to open or
close the court facilities within its geographic boundaries as
deemed prudent by its presiding judge and trial court
management.
5)Provides that except as necessary to otherwise carry out the
constitutional or other established statutory authority of the
Judicial Council, a trial court shall not be required to
coordinate or combine its operations with any other trial
court, except as the trial court management of that trial
court consents, including the assignment of its judges to any
other court.
6)Requires that all funds appropriated for trial court
operations be fully allocated to trial courts.
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7)Provides that each trial court may move funds, once budgeted
and allocated, between functions or line items or programs as
directed by that court's trial court management.
Notwithstanding Section 68085, an allocation of funds from the
Trial Court Trust Fund shall not be made without the consent
of the trial court management of the affected court or courts.
8)Requires written consent from each of the state's 58 trial
courts before they are required to fund or implement statewide
computer case management or accounting systems.
9)Requires written consent from each of the state's 58 trial
courts before the Judicial Council designs, sites, constructs,
or names new court facilities in that county.
EXISTING LAW :
1)Consolidates funding for trial court operations centrally at
the state level under the administration of the judicial
branch's Administrative Office of the Courts ("AOC").
(Government Code Section 77200 et seq., enacted by Ch. 850,
Stats. 1997, (AB 233). All further statutory references are
to this code unless otherwise stated.)
2)Provides that notwithstanding any other law, the Judicial
Council may regulate the budget and fiscal management of the
trial courts. The Judicial Council, in consultation with the
Controller, shall maintain appropriate regulations for
recordkeeping and accounting by the courts. (Section 77206.)
3)Provides that the Judicial Council shall allocate funds to the
individual trial courts pursuant to an allocation schedule
adopted by the Judicial Council. The allocation schedule
adopted by the Judicial Council must meet certain minimum
funding levels equal to county remittances to the state, as
set forth in statute. (Sections 77200 and 77207.)
4)Provides that the Judicial Council shall allocate funds to
ensure the courts can carry out their functions, promote
statewide policies, promote court efficiencies and cost
savings in court operations. The Council may also identify
and request additional funding for the trial courts for costs
resulting from the implementation of statutory changes that
result in increased levels of service or a new activity that
affects programmatic or operational requirements of the
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courts. (Section 77202.)
5)Provides that the Judicial Council shall adopt rules which
establish a decentralized system of trial court management.
(California Rule of Court, Rule 10.601.)
6)Provides, in addition, that the Judicial Council shall adopt
rules?to manage?consistent with statute?(an) annual allocation
of funding, including policies and procedures about moving
funding between functions or line items or programs. The
Council can establish bank accounts for the 58 courts for
deposit of various court funds, including moneys appropriated
in the Budget Act, and allocated or reallocated to the
Superior Court by the Judicial Council. (Sections 77001 and
77009.)
7)Grants the Judicial Council additional authority to use trial
court funds to develop statewide information technology
systems and to create regulations for trial courts'
recordkeeping and accounting. Further provides that trial
court policies and procedures shall specify the process for a
court to transfer existing funds between or among budgeted
program components. (Section 77202.)
8)Establishes the Court Facilities Trust Fund to address
maintenance, renovation and construction of courthouses, and
gives the Judicial Council the authority to manage the fund
and plan, construct, and operate court facilities in the
state. (Section 70352.)
9)Requires the Judicial Council to consult with the local courts
regarding construction of new facilities, but vests ultimate
control over new trial court facility construction with the
Judicial Council. (Section 70374.)
COMMENTS : Titled the "Trial Court Rights Act of 2011," this
legislation contains a broad umbrella of provisions that seek to
address governance practices and authority within California's
judicial branch. It is an outgrowth of substantial discontent
that has arisen in recent years amongst an unknown number of
superior court judges who contend that trial courts have not had
their constitutionally-protected administrative and financial
independence appropriately respected by the administrative arm
of the judiciary, the AOC, and its governing authority, the
Judicial Council of California (the "Judicial Council"). By
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many accounts, much of this discontent (though its breadth
within the branch is highly debated) appears to grow out of a
perception that under prior leadership the Judicial Council was
not sufficiently open to, or inclusive of, dissenting views
regarding important issues of internal judicial branch
management. This measure was introduced on February 18, 2011,
approximately one month after California's new and highly
respected chief justice, Tani Cantil-Sakauye, was sworn in to
take the helm of the state's judicial branch during a difficult
time of severe budget cuts, furloughed employees, and great
uncertainty in the court system. Though, as discussed below,
the precise impact of many of the measure's provisions appears
unclear, it is undisputed that the bill is a reflection of one
of the most turbulent periods now being experienced by the
judicial branch of government in many years.
Author's Statement : In support of the measure, the author
states in part that:
The Trial Court Funding Act was enacted to ensure equitable
distribution of funds to trial courts by transferring the
principal funding responsibility to the state of
California. The Legislature never intended to strip the
trial courts of their independence to manage themselves and
to meet their constitutional obligations. Instead, the
Legislature intended that a Financial Management Bill of
Rights be adopted as part of the Trial Court Funding Act to
protect the financial independence of the courts. The
Judicial Council and the Administrative Office of the
Courts (AOC), charged with the management of state court
funds, have failed to adopt any Bill of Rights.
The Court Case Management System (CCMS) illustrates the
problem. According to the State Auditor Report, the AOC has
spent $407 million as of June 2010, averaging $50 million a
year for a software system riddled with problems. To put
these figures into perspective, the Judicial Council closed
court houses 1-day a month to save $90 million instead of
eliminating CCMS funding. Additionally, the audit report
estimated the total cost of finishing the CCMS system at
$1.9 billion, averaging $300 million a year for the next 5
years, which does not include the cost of implementing the
system. Because trial courts lack control over their own
finances, they have been unable to either prevent court
closures or the use of their funds for CCMS.
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In order to protect the trial courts, which are created by
Article VI, Section 4 of the California Constitution, AB
1208 would carry out the intent of the Legislature when it
enacted the Trial Court Funding Act. Specifically, this
bill would provide that all funds shall be fully allocated
to the trial courts, and, once allocated, shall remain
unless consent of the affected courts is obtained. It will
also authorize each trial court to move funds between
functions or programs as directed by trial court
management. Finally, the bill would prevent the
implementation of a case or accounting information system
or to undertake the construction of a court facility in the
county without the trial court's consent.
In addition, the author's office provided the following
additional statement in support:
"Judicial Council has attempted a number of projects since
the enactment of the Lockyer-Isenberg Trial Court Funding
Act. It has created a number of court houses, it has
undertaken court maintenance, it has developed a statewide
case file computer system, and it has dealt with state
budget cuts. It has failed to adequately deal with,
develop, and execute each one of these projects.
1) Court Construction Cost : Court houses are averaging
over $1,000 a square foot, in some cases $1,700. By
comparison, federal court houses average between $500 and
$700 a square foot.
2) Maintenance cost : According to the AOC, $8,201 was
used to remove gum from the Sacramento Courthouse entry,
$3,141 was used to replace junipers with rose bushes in
front of the Madera County Superior Court, and $45,492
was used in the San Diego North County Regional Center to
repair a bench in department 10.
3) CCMS : CCMS has ballooned in cost. CCMS has been
poorly planned since the beginning.
4) Budget Cuts : Court houses were closed one day a
month to deal with budget cuts. It did this to save $90
million. At the same time, Judicial Council transferred
$72 million from the Trial Court Trust Fund (used
primarily to pay for court operations) to develop CCMS.
It seems that access to justice would be better served by
keeping court houses open instead of funding the
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development of CCMS."
Support and Opposition : The Committee has received letters of
support from the following counties' trial courts: Los Angeles,
Amador, Kern, Mariposa, Mono, Sacramento, and San Mateo.
The Committee has received opposition letters from the
California Commission on Access to Justice, the Civil Justice
Association of California (CJAC), the Consumer Attorneys of
California (CAOC), the California Defense Counsel, the
California Chamber of Commerce, the Judicial Council, and the
Santa Clara and Santa Cruz County trial courts, as well as a
large number of appellate and trial court judges.
Key Arguments Made By the Bill's Trial Court Supporters : In
support of this measure, the bill's trial court proponents point
to what they contend are a number of examples of what they
perceive to be excessive interference by the AOC into the
management and administration of their trial courts. Proponents
argue in essence that the Judicial Council has exercised too
much power over how trial courts spend what they perceive to be
their own money. Among other issues, proponents contend that
trial courts should be able to make such fundamental court
decisions as whether and when to close court facilities, or
choose instead to take alternative emergency measures of their
own design. They especially point their collective frustration
at longtime leaders within the AOC, whom they forcefully assert
have been dictatorial and uncompromising.
In support of the measure, leaders of the Alliance of California
Judges ("the Alliance"), whose membership and size is unknown,
state they abhor what they call the "erosion" of the power of
trial courts in California since the passage of the
Lockyer-Isenberg Trial Court Funding Act in 1997. They suggest
that since enactment of the Funding Act and subsequent laws,
there has been a power imbalance within the judiciary, placing
what they conceive as too much power in the hands of a flawed
AOC. Moreover, although the Funding Act of 1997 directed the
Judicial Council to adopt a "Trial Court Bill of Financial
Management Rights" the Alliance argues that this never happened,
and as a result trial courts have lost needed power to reign in
a perceived bloated and mismanaged "AOC bureaucracy."
One of the most vocal and public proponents of the measure is
the current Sacramento Superior Court presiding judge, who has
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publicly decried what he calls a "massive debacle" in recent
years to shift power from local trial courts to the AOC in San
Francisco. This judge asserts that without properly consulting
the trial courts, the AOC came to the Legislature and the
Governor to improperly gain statutory authority to allow the AOC
to force trial court closures. He contends that such forced
court closures were intended by the Judicial Council simply to
cushion the AOC and the CCMS computer program from needed budget
cuts. As a result, this trial court judge has suggested,
although the Sacramento Superior Court reportedly cut its staff
from 900 to 750 and imposed furloughs and pay cuts, as just one
example of trial court impacts, the AOC, he asserts, grew from
900 staff to over 1100 during the courts' difficult budget times
and went about "business as usual."
In a recent editorial in the San Francisco Chronicle, Los
Angeles Superior Court Judge Charles Horan focused his attack on
the AOC-administered CCMS court computer program, also
describing it as a "boondoggle." Although the AOC claimed,
Judge Horan contends, that the project would cost $250 million,
it now appears from a recent state audit that the project is
actually likely to cost $1.9 to $3 billion dollars. This
expenditure is simply not worth it, he asserts, when trial
courts lack the funding to keep their courthouse doors open.
(Charles Horan, California's CCMS Boondoggle is But a Symptom,
San Francisco Chronicle, Feb. 24, 2011.)
Key Arguments Made By the Bill's Opponents : Opponents of the
measure vigorously contend that notwithstanding that there may
be some merits to some of the concerns underlying the measure,
the bill is an unwarranted and unwise intrusion into the
internal governance of the judicial branch of government. Many
in the judiciary, opponents concede, are similarly troubled by
the serious problems specifically associated with the AOC's
implementation to date of the CCMS. But, they contend, general
branch governance concerns should be solved within the
judiciary, under the leadership of the new chief justice, whom
has already publicly stated she is open to making whatever
governance changes may make sense. She should at a minimum,
they contend, be given reasonable time to try to address such
concerns within her own branch before the Legislature seeks to
step in.
In support of this view, some prominent appellate justices have
written to their branch colleagues stating:
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We are spectators, not combatants, in the travails of the
Alliance of California Judges, the Administrative Office of
the Courts and the Judicial Council. But we lament the
toll that these controversies are needlessly taking on the
reputation and independence of our branch of government,
and the vitriol and character attacks that have become part
of the debate? we should not act out of frustration or
suspicion either to fragment judicial branch policy or
invite policy direction from outside of the branch, thereby
unwinding significant reforms that have solidified our
branch's independence. It should be the cauldron of our
collective voices as judges that determines our future, not
legislative mandate? Madison wrote in Federalist Number 48
that, 'power is of an encroaching nature,' and 'the most
difficult task is to provide some practical security for
each Ýbranch of government], against the invasion of the
others.' We ought not invite such a blurring of the lines
as would come to pass with the enactment of AB 1208.
Opponents of the bill also express worry that the measure will
risk wasting millions of dollars of state money in
inefficiencies, lead to reduced financial oversight of the trial
courts at the very time such financial oversight of all branches
of government is most needed, and generally reduce the quality
of, and access to, legal services offered to Californians,
especially for those of modest means. They fear the measure
could eliminate statewide reporting requirements and standard
accountability, auditing and reporting practices by permitting
separate accounting and case management systems in each court,
and contend many counties are not equipped to handle separately
these important accounting and case management functions. They
assert the result will be greater costs to the taxpayers, and
wasted resources that could be better spent on the
administration of justice for all Californians.
Opponents contend that prior to more centralized management of
the judicial branch there was undue reliance on highly variable
and inconsistent county funding. They applaud what they state
is the extraordinary leadership of the branch by former chief
justice Ronald George which has led to their being twice the
amount of trial court funding as there was when each individual
trial court had to "go hat in hand" to county supervisors prior
to the 1997 Funding Act. They also note that there has been
increased funding for smaller courts to protect access to
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justice in rural communities; and a focus on improving retention
of experienced judges, including substantial increases in
superior court compensation, since the governance and other
court reforms commenced in 1997. They also applaud the former
chief justice for helping set the state on a path to much safer
courthouses - now and in the future. They also contend that
since 1997's move towards greater branch centralization there
has been more effective advocacy in the Legislature on behalf of
all trial courts and the branch generally.
Opponents also state that the funding and other reforms since
1997 have enabled the Legislature to partner with the judiciary
to enact with the help of the former chief justice new statewide
justice initiatives including self-help centers in all trial
courts; expanded representation in dependency cases; equal
access funds for legal services agencies for critical civil
legal needs of low income persons; interpreters in domestic
violence cases; and innovations such as expedited jury trials.
Finally, opponents point out that within months of becoming the
court system's leader, the new chief justice has already
expressed sincere openness about potentially further
"democratizing" the selection process for the members of the
Judicial Council, including measures to allow judges to elect
some of their peers to the Council, though this would require a
constitutional amendment. (Cheryl Miller, Capital Accounts: For
New Chief, Democracy Isn't a Three-Letter Word, The Recorder,
Mar. 3, 2011.) In addition, they state that the new chief
justice has already appointed a "Strategic Evaluation
Committee," headed by a respected retired Sacramento jurist, and
tasked with broadly "assessing and reviewing all aspects of the
AOC to help reset priorities and goals that focus on core
services to the courts." They note that the new chief justice
has also publicly stated openness to potential broad changes to
the AOC if that will be beneficial. She also reportedly reached
out to the author, asking that he delay moving the measure
forward for a reasonable period of time so she can work on the
issues of concern that have been raised. (Sherri M. Okamoto,
Calderon Refutes Reports of Willingness to 'Shelve' AB 1208,
Metropolitan News-Service, Apr. 1, 2011.)
A Brief Trip Down Memory Lane -- The Legislature's Funding and
Other Branch Reforms of the Past 14 Years : Efforts to revamp
the state's tradition of 58 separately-funded county trial
courts began a quarter century ago. The steady and incremental
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movement of the Legislature towards centralization of court
funding and administration came to fruition in 1997 with AB 233
(Escutia/Pringle, Ch. 850), commonly known as the
Lockyer-Isenberg Trial Court Funding Act of 1997. The Funding
Act, which was approved by a bipartisan vote of 63-8 in the
Assembly and 30-0 in the Senate, sought to create a stable,
long-term funding base for the state's trial courts by requiring
the state to assume the full responsibility for funding the
courts. In transferring primary responsibility for funding the
courts from the counties to the state, the Legislature
recognized the necessity to provide stable and adequate funding,
uniform standards and procedures, economies of scale, and
structural efficiency. It also helped facilitate the
Legislature's ability to enact statewide initiatives to improve
access to, and the quality of, justice.
After implementation of the Funding Act of 1997, and with the
success in securing so-called state allocation limit ("SAL")
funding starting in 2005-06, the Judicial Council was in a
position to begin to address the historic large funding
disparities that existed between the state's trial courts. In
2005, the Judicial Council reported that there were 18 courts
whose budgets were 20 percent or more below their projected
funding needs. By 2007, after three years' of workload growth
and equity allocations by the Judicial Council, there appear to
be only two courts that could be considered severely
underfunded. Under the Funding Act, state funding administered
by the Judicial Council has allowed the state to substantially
equalize the funding of its trial courts, and there appears to
be little debate that the reorganization of the state's
framework of judicial funding and governance has dramatically
improved uniformity and financing for trial courts throughout
the state.
Background On the Court Facilities Reforms : In addition to
shifting responsibility for funding trial court operations from
the counties to the state, the Funding Act of 1997 also
established a Task Force on Court Facilities to identify
facility needs and possible funding alternatives. The Task
Force issued their Final Report which identified common problems
of inadequate security, safety, and access for the disabled, and
further found that a significant number of state court buildings
needed repair, renovation, or maintenance, and recommended that
responsibility for court facilities be transferred to the state.
In 2002, the Trial Court Facilities Act (Sen. Bill 1732, Stats.
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2002, Ch. 1082, and subsequent modifying language) was enacted,
providing for the shift of responsibility for trial court
facilities-including operations, maintenance, facility
modifications, and capital-outlay projects-from county to state
governance, under the direction of the Judicial Council. The
responsibility for all trial courts has now been transferred to
the state.
Although the facility transfer process has successfully
concluded, California's trial court facilities remain in a state
of significant disrepair. Based on Task Force on Court
Facilities data, approximately 90 percent of California's trial
court facilities require significant renovation, repair, or
maintenance. Many court facilities are in extremely poor
condition, lack adequate security, are functionally insufficient
to support court operations, and are sometimes inaccessible.
Thus in in 2008, the Legislature passed Senate Bill 1407
(Perata), Ch. 311, a $5 billion court construction bond that is
now funding critical facilities projects throughout the state.
This Measure Appears To Advocate a Substantially Different
Direction From The Modern Legislative Trend Over The Past 14
Years . In contrast to the modern trend toward uniform statewide
standards and administration, this bill, proponents note, seeks
to substantially rebalance authority within the judicial branch
towards much greater local trial court control and autonomy.
Proposed Legislative Declarations in the Measure: As noted
above, the bill sets forth a host of legislative findings and
declarations, several of which appear to depart from prior
legislative enactments. For example, a key legislative
declaration states that "ÝT]he Legislature has also previously
affirmed the need for strong and independent local county court
management." Supporters have not identified the basis for this
declaration, and the Committee's research has not located prior
measures in the Legislature regarding governance of the courts
that have specifically stated such a finding. While the Funding
Act contained a finding of the "need for strong and independent
local court financial management" (emphasis added), the Funding
Act explicitly provided for Judicial Council authority and
responsibility with regard to the financial management of the
courts by, among other things, providing that "the Judicial
Council may regulate the budget and fiscal management of the
trial courts" and that the Judicial Council, " in consultation
with the Controller, shall maintain appropriate regulations for
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recordkeeping and accounting by the courts" to ensure, among
other things, that "the fiscal affairs of the trial courts are
managed efficiently, effectively, and responsibly." (Gov. Code
section 77206, subd. (a) & (a)(1).)
By contrast, the proposed declaration regarding independent
local management could be read as to provide the county trial
courts an unknown increase of, or even unlimited authority over,
financial management, something prior legislative enactments
including the Funding Act have not appeared to provide.
It is also important to note that at the time of the Funding Act
of 1997's passage the Legislature also found that "Many trial
courts have made significant progress in efficiency through
court coordination in developing cost management and control
systems . . . However, this progress is not uniform throughout
the court system. . . ." The Legislature further stated its
intent to "accelerate the pace of court coordination and
efficiencies adopted by the Judicial Council and continue the
development and implementation of comprehensive budget
procedures and performance standards." Finally the Legislature
also stated its 1997 intent that the Funding Act promote and
encourage local and statewide efforts toward efficiency and
coordination of the 58 trial courts.
Responsibility For Financial Management: Amongst the measure's
broad substantive provisions, the bill sets forth both that "The
Judicial Council does not govern the trial courts?," and broadly
that "Each trial court shall have the independent right and duty
to manage its administrative and financial affairs in accordance
with its own policies, as provided by its trial court
management, if the court is in reasonable compliance with the
accounting, audit, and budgetary standards established by law."
The bill would, thereby, as explained more fully below, appear
to potentially shift at least some measure of authority for
spending judicial branch funds from the Judicial Council to the
trial courts, by statutorily granting the trial courts the
explicit right to reject proposals by the judicial branch to
spend funds allocated by the Legislature on various statewide
projects. This would appear to at least potentially include
funding directed by the Legislature itself, or the Judicial
Council, to such programs as court interpreters, counsel in
dependency cases, and self-help centers, as examples.
The bill could also potentially be interpreted to reduce the
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potential for statewide auditing of trial court spending. In
addition, the bill would also appear to provide each of the
state's 58 individual trial courts a potential "veto" power over
the siting, design and construction of any new court facility
in their jurisdiction, unless the court's trial court management
decides to provide its prior and final written consent and
approval.
Charts Comparing Bill's Proposed Changes With Existing Law : To
assist the Committee's understanding of this comprehensive
proposal, the following charts attempt to briefly compare what
it appears to propose, compared to existing law, rules, and
current practices within the judicial branch:
-----------------------------------------------------------------
| Provisions Where Proposed Changes Appear to Change Existing |
| Rules or Practice |
-----------------------------------------------------------------
|-------------+--------------------------+------------------------|
|Issue |Existing Law, Rule, or |Proposal Under AB 1208 |
| |Practice | |
|-------------+--------------------------+------------------------|
|Election of |Each court must select a |Different. Would appear |
|Presiding |presiding and assistant |to overrule current |
|Judges |presiding judge according |Rule of Court 10.602's |
| |to prescribed factors, |specified experiential |
| |but may develop an |and other criteria. |
| |internal local rule. | |
| |(Cal. R. of Court | |
| |10.620). | |
|-------------+--------------------------+------------------------|
| |Permits superior courts |Different. For |
|Hiring, |to establish the means of |example, regarding its |
|Maintaining, |selection executive |new authorization of |
|Compensating,|officers or court |courts hiring chief |
| and |administrators, clerks of |probation officers, |
|Supervising |the court, and jury |while in some courts |
|Officers and |commissioners, and to |the court selects the |
|Employees. |manage their personnel |chief probation |
| |systems, including the |officer, in some, it's |
| |adoption of personnel |the county. Also, |
| |policies. (Rule 10.601(b) |courts do not currently |
| |(2)-(3).) |supervise or compensate |
| | |the chief probation |
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| | |officer. |
| | | |
|-------------+--------------------------+------------------------|
|Judicial |Permits each court to |Different. It is |
|Assignment |determine the number and |unclear if this is |
|and Session |locations of sessions. |intended to override |
|Scheduling |Judicial Council may |Section 68548, which |
| |adopt rules to address |states that a judge |
| |appropriate mechanism for |assigned by the Chief |
| |sharing expenses between |Justice to another |
| |the respective courts. |court of like or higher |
| |(Section 69740.) |jurisdiction "has no |
| | |authority to refuse |
| | |such assignment." |
| | |It also should be noted |
| | |that Article VI, Sect. |
| | |6(e) of the State |
| | |Constitution, gives the |
| | |Chief Justice the power |
| | |to assign a judge to |
| | |another court to |
| | |"equalize the work of |
| | |judges." |
|-------------+--------------------------+------------------------|
|Contracts |Requires the courts to |Different. Each court |
|for Court |contract with the sheriff |shall be empowered to |
|Security |or the marshal for court |enter into its own |
| |security services. |contracts to provide |
| |(Section 69921 et. seq.) |security for its court |
| | |sessions, including |
| | |contracts with local |
| | |law enforcement |
| | |agencies of the courts |
| | |choosing. |
|-------------+--------------------------+------------------------|
| | | |
|Allocation |Permits superior court to |Different. Could |
|of Funds |"manage their budget and |suggest no oversight |
| |fiscal operations, |over the trial court's |
| |including allocating |use or expenditure of |
| |funding and "moving |funds, or reporting to |
| |funding between functions |the Judicial Council on |
| |and line items." |the use or expenditure |
| |(Rule 10.601(b)(4)). |of funds, limiting the |
| | |ability of the Judicial |
AB 1208
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| | |Council to report to |
| | |the Legislature. Govt. |
| | |Code Section 77206 |
| | |provides Judicial |
| | |Council may regulate |
| | |the budget and fiscal |
| | |management of the trial |
| | |courts and shall |
| | |maintain appropriate |
| | |regulations for |
| | |recordkeeping and |
| | |accounting by the |
| | |courts. |
|-------------+--------------------------+------------------------|
| | | |
|-------------+--------------------------+------------------------|
| | | |
|Court |The AOC is responsible |Different. The design, |
|Facility |for the acquisition, |siting and construction |
|Design and |construction, and design |of a court facility |
|Construction |of court facilities. |shall not be undertaken |
| |Affected courts must |in a county without the |
| |consult with the AOC |prior written consent |
| |regarding annual capital |of that court's |
| |needs and must work with |management. This would |
| |the advisory group that |appear to give trial |
| |is established for any |courts "veto" power |
| |court construction or |over key matters |
| |renovation project. |involving new court |
| |(Rule 10.184) |facility construction. |
| | | |
-----------------------------------------------------------------
-----------------------------------------------------------------
| Provisions Where Proposed Changes Effect on Current Rules or |
| Practices Unclear |
-----------------------------------------------------------------
|-------------+--------------------------+------------------------|
| Issue | Existing Law, Rule, or | Proposal Under AB 1208 |
| | Practice | |
|-------------+--------------------------+------------------------|
|Administrativ| As noted above, CA Rule | Change Unclear. Each |
| e Legal | of Court 10.601(b) gives | court may retain and |
| Counsel | courts control over | employ its own |
AB 1208
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| | hiring of personnel, but | administrative legal |
| | does not specify whether | counsel to assist with |
| |this includes or excludes | court affairs and to |
| | legal counsel to | represent the court |
| | represent the court. | with respect to its |
| | | rights, duties, and |
| | | obligations. |
| | | |
|-------------+--------------------------+------------------------|
|Coordination | Section 68500 et seq. | Change and Breadth |
| with Other |sets out the authority of | Unclear. Except as |
| Courts | Judicial Council, but it | necessary to carry out |
| | does not appear that | statutory authority of |
| | Judicial Council has |the Judicial Council, a |
| | authority to compel | trial court shall not |
| | coordination between | be compelled to |
| | courts. | coordinate or combine |
| | | operations with any |
| | | other trial court. |
|-------------+--------------------------+------------------------|
| Case and | Section 68150-68153 sets | Change and Breadth |
| Information | forth general rules for | Unclear. A trial court |
| Management | handling of court | shall not be required |
| | records, including a | to implement or share |
| | requirement that | any case or accounting |
| | electronic records be | information system or |
| | maintained according to | contribute any portion |
| |rules adopted by Judicial | of its budget to a |
| | Council. | statewide system. As |
| | |noted above, this would |
| | Judicial Council is | appear to give trial |
| |required to submit status |court "veto" power over |
| | reports on CCMS, but at | continuing efforts to |
| | this point local courts | create a statewide |
| | are not required to | court computer system |
| | participate. (Section | and could make fiscal |
| | 68511.8.) | auditing more |
| | | difficult. |
| | | |
-----------------------------------------------------------------
Ambiguities in the Measure's Language, and Uncertainties About
the Bill's Reach : Regardless of one's views about the proper
balance of control within the judicial branch, it is clear that
there are many ambiguities in this bill's provisions, and
AB 1208
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substantial uncertainties about its potential impacts,
including:
Court Coordination: For example, the measure, at subdivision
(e) on page 4, states that "Except as necessary to otherwise
carry out the constitutional or other established statutory
authority of the Judicial Council, a trial court shall not be
required to coordinate or combine its operations with any other
trial court, except as the trial court management of that trial
court consents, including the assignment of its judges to any
other court." This provision may unintentionally affect
statewide court administration. For example, the Committee may
recall that in 2007 the Superior Court of Riverside County's
criminal case backlog had reached an unprecedented level, with a
potential significant threat to public safety if the court's
high volume of last-day criminal cases required dismissal of
cases. The former chief justice acted swiftly to assist this
trial court by creating a "strike team" of judges that worked
through the backlog of cases. It is not clear whether such
types of necessary emergency actions by the chief justice would
potentially be barred under the language noted above, if for
some reason the impacted trial court chose not to cooperate with
such an issue of statewide import.
Local Court Independence: On page 3, line 26, the bill would
establish that "Each trial court of this state is recognized as
an independent constitutional and statutory court?" It is
unclear what the term "independent" means, in this seminal part
of the measure. One can reasonably assume the measure does not
mean that trial courts are independent from oversight of
appellate courts or from other laws. However the effect of the
term regarding the trial courts' relationship with the Judicial
Council is not fully evident. For example, the Constitution
currently vests in the Judicial Council the authority to adopt
rules for court administration, practice and procedure (Article
VI, sec. 6(d).) It is not certain whether the measure is
seeking to change that current constitutionally-vested authority
of the Judicial Council, and if so, how.
Local Court Financial Affairs: On page 3, line 29, the measure
provides that "(c) Each trial court shall have the independent
right and duty to manage its administrative and financial
affairs in accordance with its own policies, as provided by its
trial court management, if the court is in reasonable compliance
with the accounting, audit, and budgetary standards established
AB 1208
Page 20
by law." It is again unclear what the term "independent" means
in the framework of current governance within the judicial
branch, and where the Judicial Council's constitutionally-vested
rulemaking authority pursuant to Article VI, sec. 6(d)) ends and
the trial courts' proposed new level of independence over
administrative and financial affairs begins.
Judicial Council Governance: Additionally, page 3, line 32 of
the measure states simply that "The Judicial Council does not
govern the trial courts." The intent and breadth of this
statement is quite uncertain in regards to governance within the
judiciary. As noted above, the Judicial Council is
constitutionally-authorized to promulgate rules of court
administration, practice, and procedures. Some may even contend
that this language could potentially repeal all Judicial Council
authority to promulgate rules regarding court administration.
At a minimum, the Judicial Council contends, this provision
creates substantial uncertainty about the validity of existing
statutes and rules of court that give the Judicial Council
authority vis-a-vis the courts -- e.g., the current provision in
the Government Code (Section 77202) which requires the Judicial
Council to adopt policies and procedures governing practices and
procedures for budgeting, as well as Government Code Section
77206 which authorizes the Judicial Council to regulate the
budget and fiscal management of the courts to ensure that their
fiscal affairs are managed efficiently, effectively, and
responsibly.
Allocation of Funds: In addition, in the bill's requirement
under subdivision (f) that all funds allocated to trial court
operations be fully allocated, with no deduction without the
consent of the affected courts, it is not evident who the
affected courts may be. It is unclear if it is the courts that
may lose funds, the courts that may have funds reallocated to
them based upon need, or all of the courts. It is also unclear
whether under subdivision (g) the Judicial Council will have any
oversight authority over how a trial court expends its allotted
funds, and whether trial courts may henceforth ignore
legislative directives and requirements by moving funds between
line items and programs, as the trial courts deem appropriate,
as the bill provides at page 5, lines 6-8.
Debate Regarding The Bill's Contention That the Judicial Council
Did Not Properly Enact a Rule of Court Regarding Trial Court
Financial Management Rights : In its findings, the measure
AB 1208
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contends that the Judicial Council never properly adopted a
"Trial Courts Bill of Financial Management Rights," as the
Legislature required in the 1997 Funding Act. This issue
appears to be a major bone of contention between supporters and
opponents of the measure. The Committee's research suggests
that the Judicial Council did indeed enact a rule of court, Rule
of Court 10.601, in response to the 1997 legislative directive,
though supporters and opponents disagree whether the Rule
sufficiently comports with the legislative directive.
Questions Regarding Whether Portions of This Measure Would Be
Found Unconstitutional : In an editorial highly critical of the
proposal, University of California Irvine Law School Dean Erwin
Chemerinsky argues that the portions of this measure which might
take away the authority of the Judicial Council to adopt rules
of court administration and restrict a chief justice's ability
to assign judges are likely unconstitutional. ("Enactment of AB
1208 Would Reverse the Benefits of Centralization That Our Court
System Has Achieved," Daily Journal, March 30, 2011.) Dean
Chemerinsky argues that these measures would likely violate
Article VI, Section 6(e) of the California Constitution, which
vests these powers in the Chief Justice, stating in part, "The
Chief Justice may provide for the assignment of any judge to
another court but only with the judge's consent if the court is
of lower jurisdiction. A retired judge who consents may be
assigned to any court."
Major Information Technology Concerns : Though the impact and
meaning of many of the bill's current provisions is very
unclear, there can be little doubt that a major fuel for concern
amongst some of the trial courts and many judicial officers
across the state regarding governance by the AOC and Judicial
Council has involved indisputable and serious problems
surrounding the branch's implementation of the Court Case
Management System (CCMS) and some trial court concerns about
other information technology programs managed by the AOC.
Genesis of CCMS: According to AOC records, when the state
assumed responsibility for funding the trial courts in 1998,
more than 130 variations of 70 independently operated systems
were used in California's trial courts, having been developed by
counties, courts, and private commercial vendors. Thus the goal
of the CCMS system was to replace the multiple existing systems
that courts currently use, many of which do not allow for
exchange of information with systems of other state agencies,
AB 1208
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with a single statewide computer system for the courts that
would eventually replace more than 70 different case management
systems of varying levels of capability and age currently in use
in California's trial courts. The branch hoped that CCMS would
provide benefits not only to the courts themselves, but also to
millions of Californians by greatly expanding electronic
services and enabling a standardized approach to doing business
across the state. The branch also had hoped that CCMS would
provide judges with critical information as they are hearing
cases and making decisions about releasing criminal defendants,
placing children in foster care or reunifying them with their
parents, ordering custody or visitation of children, and issuing
protective or restraining orders.
Current Problems and Controversies Surrounding CCMS: In the
recent painful climate of employee furloughs and severe budget
cutbacks across trial courts in California, proponents of this
measure repeatedly point to what they call the "boondoggle" of
$1.9 to $3 billion now anticipated to be spent developing CCMS.
On February 8, 2011, the California State Auditor released an
unusually scathing audit report of CCMS, entitled: The
Statewide Case Management Project Faces Significant Challenges
Due to Poor Project Management. Amongst the "key findings" in
the Auditor's report:
The AOC inadequately planned the project since 2003.
Specifically, the AOC: 1) Did not conduct a business needs
assessment at the onset of the project nor has it performed a
cost-benefit analysis to ensure that the CCMS is the most
cost-effective technology solution for the courts' needs; and
2) Did not structure its contract with the development vendor
to adequately control the project costs and scope-over the
course of seven years, the AOC entered into 102 contract
amendments and increased the cost of the contract from $33
million to $310 million.
The AOC has consistently failed to develop accurate cost
estimates or timelines for the project. Cost estimates have
gone from $260 million in 2004 to nearly $1.9 billion in 2010.
Moreover, this estimate excludes other significant costs such
as those that the superior courts and justice partners are
likely to incur if CCMS is deployed. Annual reports to the
Legislature did not provide complete cost information. The
estimated date for complete deployment has been pushed back by
seven years.
AB 1208
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The majority of the courts believe their current case
management systems will serve them for the foreseeable future
and users of interim systems expressed reservations about
using CCMS. Some of these users say they will not adopt CCMS
until the AOC makes significant improvements in the areas of
performance, stability, and product management.
The AOC's attempt at independent oversight came late in the
life of the project and the scope of services it contracted
for fell short of best practices for a project of this size
and scope. Nevertheless, the AOC did not adequately address
significant concerns raised by the consultant providing the
oversight and thus, the project may have future quality
issues.
The Auditor then made extensive and broad recommendations to the
AOC, including the following that the AOC should take
immediately: 1) Conduct a thorough analysis of the costs and
benefits of CCMS to determine the course of action to take; 2)
Update cost information and estimates on a regular basis and
report true costs to the Legislature and others; 3) Develop a
realistic overall funding strategy for the CCMS in light of the
current fiscal crisis facing the state; 4) Take steps to fully
understand and address the trial courts' concerns as
implementation moves forward; 4) Retain an independent
consultant to review CCMS before deployment to determine if
there are quality issues and problems.
The AOC has now agreed to implement all of these
recommendations, though the bill's proponents repeatedly and
heatedly criticize the unreasonable length of time they contend
it took for top AOC management to accept responsibility for
their missteps and take needed actions.
While the AOC has stated its intention to continue development
and implementation of CCMS, as part of this year's budget (SB
78, Ch. 10, Stats. 2011), the Legislature codified the Auditor's
recommendation that an independent assessment of the CCMS be
conducted "to ensure that no significant quality issues or
problems exist within CCMS." In codifying this recommendation,
SB 78 requires that the AOC retain an independent consultant to
review the system and produce a written independent assessment.
It also requires that prior to deploying CCMS to any trial
court, the independent consultant shall provide the written
AB 1208
Page 24
independent assessment to the AOC and the AOC shall transmit
this report to each of the chairs and vice-chairs of the Senate
Committee on Budget and Fiscal Review and the Assembly Committee
on Budget. SB 78 also requires that the AOC work with the
development vendor of CCMS to ensure that any flaws, defects, or
risks identified in the independent assessment are remedied
during the warranty period before considering any further
deployment of the system.
How The Bill Seeks to Address CCMS : Proponents of this measure
agree that as currently drafted, the bill would effectively give
a single trial court in California complete "veto" power over
further development of the entire system, or any financial
accounting system generally, if the goal of the system is a
statewide approach ultimately connecting all 58 state trial
courts. Proponents have recently stated this single court veto
power is not their intent, but have not yet determined precisely
how they would strike the balance legislatively on this issue.
Amendments Requested by the Author Which the Committee May Wish
to Consider In Place of the Existing Provisions in the Measure :
In order to address concerns that have been raised, the author
is proposing to substitute the following provisions to
constitute the entire contents of the measure. These provisions
would:
1)Clarify that, based on information submitted in the Governor's
proposed budget, the Legislature shall continue to specify, in
each annual Budget Act, funding amounts for programs of
statewide concern to come from all funds appropriated by the
Legislature for trial court operations prior to allocating
funds to each local trial court.
2)Require the Judicial Council and/or its designee to allocate
the entire amount of funds appropriated by the Legislature for
trial court operations according to each court's proportional
share of statewide court operation funding. The Judicial
Council may submit a request to the Legislature of any amount
of funding that it recommends be set-aside for statewide court
operation needs. The request shall include the purposes of
such set-asides to promote statewide policies, promote court
efficiencies and to achieve cost savings in court operations.
Legislative approval and/or modification of the request is
required before the proposed set-aside funds are redirected
and expended.
AB 1208
Page 25
3)Notwithstanding the full allocation required in # 2, allow
Judicial Council and/or its designee to withhold portions of
all funds appropriated by the Legislature for trial court
operations for statewide information technology and
administrative infrastructure expenses only after obtaining
written approval from 75% of a proportional representation of
all local trial courts, if such programs were not identified
in the annual Budget Act.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles Superior Court
Superior Court Amador
Superior Court Kern
Superior Court Mariposa
Superior Court of California, Mono County
Superior Court of California, County of Sacramento
Superior Court of California, San Mateo
Peace Officers Research Association of California
A Large Number of Individual Superior Court Judges
Opposition
Bar Association of San Francisco
Cal Chamber
California Commission on Access to Justice
California Defense Counsel
Civil Justice Association of California
Consumer Attorneys of California
Judicial Council of California
Superior Court of California, County of Contra Costa
Superior Court of California, County of Santa Clara
Superior Court of California, County of Santa Cruz
Superior Court of California, County of Sonoma
A Large Number of Individual Superior Court Judges and Appellate
Justices
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
AB 1208
Page 26