BILL ANALYSIS                                                                                                                                                                                                    Ó



                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                             2015-2016  Regular  Session


          AB 2341 (Obernolte)
          Version: May 18, 2016
          Hearing Date: June 28, 2016
          Fiscal: Yes
          Urgency: No
          ME


                                        SUBJECT
                                           
                           Allocation of vacant judgeships

                                      DESCRIPTION  

          Existing law authorizes 50 additional judges, upon appropriation  
          by the Legislature, to be allocated to various county superior  
          courts, pursuant to uniform criteria approved by the Judicial  
          Council of California.  This bill would require that up to five  
          vacant judgeships be allocated from superior courts with more  
          authorized judgeships than their assessed judicial need to  
          superior courts with fewer authorized judgeships than their  
          assessed judicial need.  This bill would also require that the  
          allocation of vacant judgeships be in accordance with a  
          methodology approved by the Judicial Council, as specified.  

                                      BACKGROUND  

          This Committee is the author of Senate Bill 1023, a bill that  
          would appropriate $5 million from the General Fund for the  
          purpose of funding 12 of the 50 previously authorized superior  
          court judgeships and accompanying staff, and require the  
          Judicial Council to determine the allocation of the funded  
          judgeships pursuant to uniform criteria.<1>  SB 1023 was held on  
          suspense in the Senate Appropriations Committee this year.  Last  
          year, the Governor vetoed SB 229 (Roth, 2015), a bill that was  
          identical to SB 1023.  In his veto message the Governor stated  
          that he intended to work with the Judicial Council to develop a  
          system wide approach to balance the workload and the  
          distribution of judgeships around the state.  As part of this  
          year's budget, the Governor proposed a budget trailer bill to  
          reallocate two vacant judgeships each from the counties of Santa  
          ---------------------------
          <1> AB 159 (Jones, Chapter 722, Statutes of 2007), authorized  
          the creation of 50 judgeships to be filled but did not fund  
          them.







          AB 2341 (Obernolte)
          PageB of? 

          Clara and Alameda and transfer two judgeships each to the  
          counties of Riverside and San Bernardino.  The Governor's  
          proposal was not part of the final Budget.  

          According to the Judicial Council's November 2014 report, "Based  
          on the 2014 Judicial Needs Assessment, 35 courts need new  
          judgeships, for a total need of 269.8 [(full-time equivalent  
          judicial positions)].  This is nearly 14 percent higher than the  
          1,963.3 authorized and funded judicial positions.  The need  
          estimate does not include judicial vacancies resulting from  
          retirement, elevations, or other changes, that have not yet been  
          filled." (Jud. Council of Cal., Rep. on the 2014 Update of  
          Judicial Needs Assessment (Nov. 2014) pp. 1, 3.)

          This bill is the latest in a series of bills to attempt to  
          increase the number of judgeships in the superior courts that  
          have the most need.  This bill would require that up to five  
          vacant judgeships be allocated from superior courts with more  
          authorized judgeships than their assessed judicial need to  
          superior courts with fewer authorized judgeships than their  
          assessed judicial need.  This bill would also require that the  
          allocation of vacant judgeships be in accordance with a  
          methodology approved by the Judicial Council, as specified.

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that the Legislature shall prescribe the  
          number of judges and provide for the officers and employees of  
          each superior court.  (Cal. Const., art. VI, Sec. 4.)

           Existing law  specifies the number of superior court judges in  
          each of the 58 counties.  (Gov. Code Secs. 69580-69611.)

           Existing law  establishes that in the County of:
                 Alameda there are 69 judges.  (Gov. Code Sec. 69580.)
                 Santa Clara there are 79 judges. (Gov. Code Sec. 69600.)
                 Riverside there are 49 judges. (Gov. Code Sec. 69592.)
                 San Bernardino there are 63 judges of the superior  
               court.  (Gov. Code Sec. 69594.)

           Existing law  authorizes 50 additional superior Court judges to  
          be allocated to the various superior courts pursuant to uniform  
          criteria adopted by the Judicial Council, upon appropriation in  
          the 2007-08 fiscal year.  Existing law requires that the uniform  









          AB 2341 (Obernolte)
          PageC of? 

          criteria for determining additional judicial need take into  
          account the following: (1) court filings data averaged over a  
          three-year period; (2) workload standards that represent the  
          average amount of time of bench and non-bench work required to  
          resolve each case type; and (3) a ranking methodology that  
          provides consideration for courts that have the greatest need  
          relative to their current complement of judicial officers. (Gov.  
          Code Secs. 69614, 69614.2.)
           
          Existing law  specifies the composition and duties of the  
          Judicial Council (Council), requires judges to report to the  
          Council as the Chief Justice directs concerning the condition of  
          judicial business in their courts, requires judges to cooperate  
          with the Council and hold court as assigned, and specifies that  
          the Chief Justice:
           shall seek to expedite judicial business and to equalize the  
            work of judges; 
           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. 
           may assign a retired judge who consents to any court.  (Cal.  
            Const., art. VI, Sec. 6.)

           Existing law  specifies the process for electing superior court  
          Judges, and for their appointment by the Governor.  (Cal.  
          Const., art. VI, Sec. 16.)

           This bill  would state that is the intent of the Legislature that  
          this act shall not be construed to limit the authority of:
           the Legislature to create and fund new judgeships pursuant to  
            Section 4 of Article VI of the California Constitution;
           the Governor to appoint a person to fill a vacancy pursuant to  
            subdivision (c) of Section 16 of Article VI of the California  
            Constitution; or
           the Chief Justice of California to assign judges pursuant to  
            subdivision (e) of Section 6 of Article VI of the California  
            Constitution. 

           This bill  would require that up to five vacant judgeships be  
          allocated from superior courts with more authorized judgeships  
          than their assessed judicial need to superior courts with fewer  
          authorized judgeships than their assessed judicial need to  
          provide for a more equitable distribution of judgeships and upon  
          notice to the applicable courts. 









          AB 2341 (Obernolte)
          PageD of? 


           This bill  would require that the allocation of vacant judgeships  
          be in accordance with a methodology approved by the Judicial  
          Council after solicitation of public comments, and that the  
          determination of a superior court's assessed judicial need be in  
          accordance with the uniform standards for factually determining  
          additional judicial need in each county, as updated and approved  
          by the Judicial Council, pursuant to the Update of Judicial  
          Needs Study, based on the criteria set forth in subdivision (b)  
          of Section 69614.

           This bill  would provide that if a judgeship in a superior court  
          becomes vacant, the Judicial Council shall determine whether the  
          judgeship is eligible for allocation to another superior court  
          under the methodology, standards, and criteria described above,  
          and if the judgeship is eligible for allocation to another  
          superior court, the Judicial Council must promptly notify the  
          applicable courts, the Legislature, and the Governor that the  
          judgeship vacated in one court shall be allocated to another  
          court.

           This bill  would specify that a judgeship becomes "vacant" when  
          an incumbent judge relinquishes the office through resignation,  
          retirement, death, removal, or confirmation to an appellate  
          court judgeship during either of the following:
           at any time before the deadline to file a declaration of  
            intention to become a candidate for a judicial office, as  
            specified; or
           after the deadline to file a declaration of intention to  
            become a candidate for a judicial office if no candidate  
            submits qualifying nomination papers by the deadline.

           This bill  would provide that a judgeship shall not become  
          "vacant" when an incumbent judge relinquishes the office as a  
          result of being defeated in an election for that office.

                                        COMMENT
           
          1.    Stated need for this bill

           According to the author:

             In August 2001, the Judicial Council approved a statewide  
             methodology for determining the number of trial court  









          AB 2341 (Obernolte)
          PageE of? 

             judges needed based on workload standards developed by the  
             National Center for State Courts. When it created and  
             funded the first set of 50 new judgeships in 2006, the  
             Legislature directed that new judgeships would be  
             allocated according to the assessed judicial need and  
             prioritization methodology approved by the council.

             In addition, Government Code section 69614(c)(1) required  
             that the council report by November 1 of every even  
             numbered year "on the factually determined need for new  
             judgeships in each superior court using the uniform  
             criteria for allocation of judgeships" established in the  
             judicial workload model. These biennial reports show that  
             the statewide need for judicial officers has remained  
             consistently greater than the number of authorized  
             judicial positions.

             The most recent Judicial Needs Assessment Report (2014)  
             shows an overall shortage of 270 judges statewide. The  
             report also demonstrates that there is an uneven statewide  
             distribution of judgeships and some courts have  
             proportionately fewer judges than others to handle their  
             workload. For example, the trial courts in Riverside and  
             San Bernardino have only 60 percent of the judicial  
             officers they need. But the trial courts in Alameda and  
             Santa Clara have more judges than necessary to handle  
             their assessed needs, 14 and 19 more judicial officers,  
             respectively. Currently, Alameda has three vacant  
             judgeships and Santa Clara has two.

             Presently, no mechanism is available to transfer vacant  
             judgeships from one court to another. Courts with fewer  
             judges than their assessed needs have had to spread their  
             workload among their existing authorized judicial  
             officers, which has created a backlog and limits the time  
             that a judge can spend on each case, particularly for  
             family law and civil cases.

             Governor Brown has been reluctant to fund new judgeships  
             until action is taken to distribute judge positions based  
             on workload needs. In his veto message for SB 229 (Roth  
             2015), which would have appropriated $5 million from the  
             General Fund to fund 12 of the second set of 50 authorized  
             judgeships, Governor Brown stated a desire to "work with  









          AB 2341 (Obernolte)
          PageF of? 

             the Judicial Council to develop a more system-wide  
             approach to balance the workload and the distribution of  
             judgeships around the state" before funding any new  
             positions.

          2.    Opposition 

           In opposition, the California Federation of Interpreters writes  
          that "this bill further intensifies the growing atmosphere of  
          instability among our courts as underfunded courts are forced to  
          compete for resources against other underfunded courts."   
          Writing in opposition, a coalition of Labor Unions and the  
          California Labor Federation note:

             There are indeed courts throughout California which have  
             too few judges.  These courts also have too few employees  
             who are critical to the processing and expediting of  
             justice in California.  Every single court in California  
             is underfunded and to take resources from one underfunded  
             and understaffed court and give to another is extremely  
             shortsighted and pits one trial court against another.

             Our members know all too well about the ongoing shortage  
             of funds in the judicial branch and the funding  
             methodology referred to as the WAFM model which has  
             created an atmosphere of instability and competition for  
             dollars among the trial courts.  The WAFM model  
             essentially takes resources from one underfunded court and  
             gives them to another more underfunded court.  AB 2341  
             would only exacerbate the current funding instability  
             among the trial courts.

             A more honest and fair approach to resolving the problem  
             of severely understaffed and under-resourced courts is to  
             provide funding equalization dollars to bring those courts  
             up to an appropriate level of operation, as well as to  
             provide dedicated dollars for courts with severe shortages  
             in judgeships versus robbing Peter to pay Paul.  

          3.    Superior court judge shortage throughout California
           
          Under existing law, the Judicial Council is required to report  
          to the Legislature on or before November 1st of every  
          even-numbered year on the need for new judgeships in each  









          AB 2341 (Obernolte)
          PageG of? 

          superior court.  The most recent report, The Need for New  
          Judgeships in the Superior Courts: 2014 Update of the Judicial  
          Needs Assessment, found that a critical need for new judgeships  
          remains and that nearly 270 new judgeships are needed to meet  
          the workload-based need in the trial courts.  The report  
          asserted that: "The public's right to timely access to justice  
          is contingent on having adequate judicial resources in every  
          jurisdiction. The number of judgeships authorized and funded by  
          the Legislature has not kept pace with workload, leaving many  
          courts with serious shortfalls -as high as nearly 70 percent -  
          between the number of judgeships needed and the number that have  
          been authorized and filled."  (Jud. Council of Cal., Rep. on the  
          Need for New Judgeships in the Superior Courts: 2014 Update of  
          the Judicial Needs Assessment (Dec. 2014) p. 3.) The report  
          further noted that:

            Consistent with reports submitted in previous years, the  
            2014 Judicial Needs Assessment shows that there is a  
            critical shortage of judges relative to the workload needs  
            in California's trial courts.  [The report] summarizes the  
            statewide judicial need compared to available resources  
            based on a three-year average of filings from fiscal years  
            2010 - 2011 through 2012 - 2013, showing that 2,171.3  
            [full-time equivalent judicial positions (FTEs)] are needed  
            statewide, compared to 1,963.3 FTE authorized and funded  
            positions.  While Assembly Bil1 159 (Stats. 2007, Ch. 722)  
            authorized 50 new judgeships for the superior courts, those  
            positions have neither been funded nor filled.  [The report]  
            shows the total assessed statewide need for judicial  
            officers has declined by 5 percent since the 2012 Judicial  
            Needs Assessment.  Lower overall filings counts in recent  
            years account for the slight decline in statewide assessed  
            judicial need. (Id. at p. 4.)

          In support of this bill, the Judicial Council of California  
          notes that this bill is intended to address the Governor's veto  
          message of SB 229 in 2015, where he wrote, "I am aware that the  
          need for judges in many courts is acute - Riverside and San  
          Bernardino are two clear examples.  However, before funding any  
          new positions, I intend to work with the Judicial Council to  
          develop a more systemwide approach to balance the workload and  
          the distribution of judgeships around the state."  

          The Superior Court of California County of Riverside's Presiding  









          AB 2341 (Obernolte)
          PageH of? 

          Judge, in support asserts that "[a]lthough I believe the better  
          approach would be to fund additional positions, Governor Brown  
          has made it clear that he believes there are sufficient funded  
          positions statewide but that there are perhaps too many in  
          certain counties and of course too few in Riverside and San  
          Bernardino."

          In response to the continued need for additional judgeships, and  
          faced with the reality that the Legislature's recent attempts to  
          fund authorized judgeships have failed, this bill seeks to allow  
          the Judicial Council to move up to five vacant judgeships from  
          superior courts with more authorized judgeships than their  
          assessed judicial need to superior courts with fewer authorized  
          judgeships than their assessed judicial need.  

           4.    The Legislature has the Constitutional authority to  
          prescribe the number of judges in each superior court
           
          The California Constitution vests the Legislature with the duty  
          to "prescribe the number of judges and provide for the officers  
          and employees of each superior court."  (Cal. Const., art. VI,  
          Sec. 4.)  Opponents, the Alliance of California Judges, assert  
          that it would be "highly inappropriate and clearly  
          unconstitutional for the Legislature to provide [Judicial  
          Council]" with the authority to allocate vacant judgeships among  
          the superior courts of this state.  

          The Legislature has set the number of superior court judges in  
          each of the 58 counties.  However, the legislature has also  
          authorized new superior court judgeships without specifying in  
          which particular counties those judges should be allocated.  The  
          legislature has previously given the Judicial Council a role in  
          determining where new judicial positions would be located.   
          Indeed, current law authorizes 50 new superior court judgeships,  
          upon funding, and authorizes the allocation of the judgeships to  
          particular counties to be determined pursuant to uniform  
          criteria as updated and approved by the Judicial Council.   
          Existing law requires that the uniform criteria for determining  
          additional judicial need take into account the following: (1)  
          court filings data averaged over a three-year period; (2)  
          workload standards that represent the average amount of time of  
          bench and non-bench work required to resolve each case type; and  
          (3) a ranking methodology that provides consideration for courts  
          that have the greatest need relative to their current complement  









          AB 2341 (Obernolte)
          PageI of? 

          of judicial officers. 

          The Committee has not been provided with any examples where the  
          Legislature has given the Judicial Council the authority to move  
          judgeships, whether vacant or filled, from one county to  
          another.  The authority given to the Judicial Council to make  
          determinations regarding locations of judgeships has only been  
          given when new judgeships were created and funded. 

          If the Committee is inclined to allow up to five vacant  
          judgeships to be moved from one superior court to the another,  
          the Committee may wish to amend this bill to make clear which  
          vacant judgeships should be taken from one county and given to  
          another.  Additionally, this Committee may wish to consider  
          amending the bill to ensure that no staff funding is removed  
          from the courts that would lose the vacant judgeships.  The  
          Committee may wish also wish to seek an amendment to make clear  
          that the courts receiving vacant judgeships also receive funding  
          to adequately staff the new judges.  


            Support  :  Superior Court of California County of Riverside

           Opposition  :  Alliance of California Judges; American Federation  
          of State County and Municipal Employees; California Federation  
          of Interpreters (CFI); California Labor Federation; California  
          Official Court Reporters Association; Laborers International  
          Union of North America, Locals 777 & 792; Orange County  
          Employees Association; San Diego County Court Employees  
          Association; San Luis Obispo County Employees Association;  
          Service Employees International Union; Teamsters; 

                                        HISTORY
           
           Source  :  Judicial Council of California

           


          Related Pending Legislation  :

          AB 2882 (Committee on Judiciary), among other things, would  
          authorize the Judicial Council to convert 10 subordinate  
          judicial officer positions to judgeships in the 2016-17 fiscal  









          AB 2341 (Obernolte)
          PageJ of? 

          year when the conversion will result in a judge being assigned  
          to a family law or juvenile law assignment previously presided  
          over by a subordinate judicial officer.  This bill is in the  
          Senate Committee on Judiciary.

          SB 1023 (Committee on Judiciary) would appropriate $5 million  
          from the General Fund for the purpose of funding 12 of the 50  
          previously authorized superior court judgeships and accompanying  
          staff, and require the Judicial Council to determine the  
          allocation of the funded judgeships pursuant to uniform  
          criteria, as specified.  This bill was held on suspense in the  
          Senate Appropriations Committee.

           Prior Legislation  :

          AB 1519 (Committee on Judiciary, Ch. 416, Stats. 2015), among  
          other things, authorized Judicial Council to convert 10  
          subordinate judicial officer positions, as specified.

          SB 229 (Roth, 2015) See Background.

          AB 159 (Jones, Ch. 722, Stats. 2007) See Background.

           Prior Vote  :

          Assembly Floor (Ayes 76, Noes 1)
          Assembly Appropriations Committee (Ayes 20, Noes 0)
          Assembly Health Committee (Ayes 18, Noes 0)

                                   **************