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 AB 1208 Page 2 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 AB 1208 Page 3 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. AB 1208 Page 4 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 AB 1208 Page 5 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 AB 1208 Page 6 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. AB 1208 Page 7 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 AB 1208 Page 8 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 AB 1208 Page 9 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: AB 1208 Page 10 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 AB 1208 Page 11 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 AB 1208 Page 12 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. AB 1208 Page 13 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 AB 1208 Page 14 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 AB 1208 Page 15 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 | AB 1208 Page 16 | | |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 Page 17 | | |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 Page 18 | | 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 Page 19 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 Page 21 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 Page 22 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 Page 23 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