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) **************