BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2007-2008 Regular Session
AB 159 A
Assemblymember Jones B
As Amended June 21, 2007
Hearing Date: July 10, 2007 1
Government Code 5
GWW:jd 9
SUBJECT
New Judgeships:
New and Converted Judicial Positions
-Collection of Applicants' and Nominees' Demographic Data-
DESCRIPTION
This bill would, upon legislative appropriation in the
2007-08 fiscal year, authorize an unspecified number of new
superior court judgeships. Allocation of the new positions
would be determined pursuant to uniform criteria as updated
and approved by the Judicial Council on February 23, 2007
for assessing the need for additional trial court judges.
The bill would also, upon subsequent legislative
authorization, permit the conversion of up to 162 existing
subordinate judicial officer (SJO) positions to judgeships
in eligible superior courts upon a vacancy of a SJO
position, provided that no more than 16 subordinate
judicial officer positions may be converted in any calendar
year. Eligibility for conversion would be determined by
the Judicial Council pursuant to uniform criteria for
determining the need for converting SJO positions to
judgeships. The Governor may fill by appointment the new
vacant judicial position. Candidates for appointment would
be subject to review by the State Bar's Commission on
Judicial Nominees Evaluation.
Finally, this bill would revise the existing demographic
data collection requirement and instead require the
Governor to collect and release, on an aggregate statewide
(more)
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basis, demographic data provided by all judicial applicants
relative to ethnicity, race, and gender, and demographic
data on all judicial appointments or nominations relative
to ethnicity, race, and gender, as provided by the
appointee or nominee.
BACKGROUND
According to the Judicial Council, since 1980, the total
number of new judges in the trial courts has grown by
approximately 20 percent while, during the same period, the
total population in California grew by more than 50
percent. With the enactment of last year's SB 56 (Dunn),
Chapter 390, Statutes of 2006, there are currently 1,548
authorized superior court judgeships and about another 422
commissioner and referee positions, for a total of 1,970
"Authorized Judicial Positions" (AJPs). The Judicial
Council, however, contends that its current workload
standards justify 2,332 "Judicial Position Equivalents"
(JPEs), which include the current AJPs plus the services of
assigned judges, temporary judges, and temporary
commissioners and referees. This shortage of adequate
judges, Judicial Council asserts, creates a "justice gap."
AB 159 is intended to help close this "justice gap."
The following chart from Judicial Council's 2007 Court
Statistics Report illustrates the increasing demand on
California's courts and judges.
CHANGES TO EXISTING LAW
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1. Existing law , Article VI, Section 4 of the California
Constitution provides that the Legislature shall
prescribe the number of judges and provide for the
officers and employees of each superior court.
Existing law , Article VI, Section 22, provides that the
Legislature may provide for a court's appointment of
officers such as commissioners to perform subordinate
judicial duties.
This bill would, upon appropriation of the Legislature,
create an additional unspecified number of superior court
judges to be appointed by the Governor in the 2007-08
fiscal year to the various county superior courts as
determined by the Judicial Council pursuant to uniform
criteria.
The bill would also authorize up to 162 subordinate
judicial officer positions in eligible superior courts,
as determined by the Judicial Council, to be converted to
judgeships, according to uniform specified criteria and
upon appropriation by the Legislature, provided that no
more than 16 positions may be converted in each calendar
year. The bill would declare the Legislature's intent in
enacting this provision to restore an appropriate balance
between subordinate judicial officers and judges and to
ensure that critical case types can be heard by judges.
2. Existing law requires the Governor to submit to a
designated agency of the State Bar of California the
names of all potential nominees for a vacant judicial
office for evaluation of their judicial qualifications.
Existing law also requires the Governor, on or before
March 1, 2007, and annually on or before each March 1
thereafter, to disclose aggregate statewide demographic
data provided by all judicial applicants relative to
ethnicity and gender.
This bill would revise that data disclosure requirement
to instead require the Governor to collect and release,
on an aggregate statewide basis:
1) demographic data provided by all judicial applicants
relative to ethnicity, race, and gender; and 2)
demographic data relative to ethnicity, race, and gender
of all judicial appointments or nominations as provided
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by the appointee or nominee.
COMMENT
1. Stated need for more judges
According to the Judicial Council (JC), sponsor of AB
159, "California is suffering from a severe shortage in
the number of trial court judgeships. The ramifications
are serious and far-reaching, and include a significant
decrease in Californians' access to the courts,
compromised public safety, an unstable business climate,
and enormous backlogs in some courts that inhibit fair,
timely, and equitable justice." The Judicial Council
writes:
Access to courts is fundamentally compromised by
judicial shortages. Every citizen is constitutionally
entitled to impartial and timely dispute resolution
through the courts. With a judicial gap, civil
proceedings and family law hearings are routinely
rescheduled, with courts reporting delays of up to 18
months from filing to trial. This culture of
continuation keeps parents, children, victims, and
defendants in limbo. In the face of these delays, an
unknown number of citizens simply decide that the
court has no time for their problems.
The public is endangered when there are too few
judicial officers to hear criminal cases. Significant
backlogs in criminal cases have serious repercussions.
County jails have had to release inmates early as a
result of overcrowding caused by multi-months delays
in processing criminal commitments. Heavy caseloads
force liberal plea-bargains that favor criminal
defendants, because criminal cases must be dismissed
if they are not heard within specified time frames.
Delays occur in both the issuing and recalling of
bench and arrest warrants.
Criminal cases must be heard within 90 days of filing
and thus take priority over all other legal matters.
As a result, civil justice suffers, creating
uncertainty in the business community-which cannot
rely on timely resolution of contract disputes.
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This judicial gap arises, asserts Judicial Council,
because trial court judicial positions have not kept pace
with population growth, which in turn fuels additional
court filings and court workload. JC points out that
between 1990 and 2000, California's population grew by
over 16 percent while the number of new judgeships
created by the Legislature grew less than three percent.
(The JC points out elsewhere in its briefing paper that
the creation of SJO positions to serve as temporary
judges increased significantly between 1989 and 2005 to
compensate for the absence of new judgeships.) This
imbalance is demonstrated by the following examples:
In Butte County, between calendar years 2002 and
2004, felonies increased 22 percent, misdemeanors
increased 8.6 percent, and juvenile dependency filings
increased 40.2 percent.
In Kern County, since 1995, juvenile dependency
cases have increased 93 percent and overall juvenile
filings have increased 35 percent.
In Kings County, since 2001, felonies have
increased 71 percent, juvenile delinquency cases have
increased 4.5 percent, and writ filings have increased
32.5 percent.
In Placer County, court filings increased 9.6
percent from 2003 to 2004.
In Riverside County, in FY 2003-2004, felony
filings increased 5.2 percent and traffic filings
increased 5.7 percent. There has also been a 9
percent increase in new family law and domestic
violence cases in the past 5 years.
In addition, from 2004 to 2007, the JC reports the
following statewide trends:
Total criminal workload increased 8 percent, with
49 courts experiencing growth in this workload.
Total felony workload increased by 11 percent, with
52 courts experiencing growth in this field.
Juvenile dependency and juvenile delinquency
workload each increased by 6 percent.
30 courts had workload growth in probate and
guardianship cases.
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Consequences of the judicial gap include:
In June 2004, Riverside County suspended all civil
trials to address a backlog of criminal trials.
In Fresno County, 19.4 percent of civil cases that
are currently pending were filed prior to 2001.
In Sacramento County, civil litigants must wait up
to 18 months for trial.
In San Bernardino County, each direct calendar
judge has 875 cases pending trial, law and motion, or
other hearings.
The JC briefing paper cites several other examples of
counties facing additional workloads due to increases in
traffic misdemeanors and infractions, family law, and
domestic violence cases.
The Judicial Council asserts that passage of AB 159 would
reduce overwhelming backlogs, promote the speedy
resolution of civil disputes, increase public safety, and
foster a stable environment for state businesses.
Chief Justice Ronald George stated in his 2006 State of
the Judiciary address:
Related to the need to provide a qualitatively
adequate judiciary is the need to ensure a
quantitatively adequate judiciary. We have documented
the need for additional [judgeships] to enable the
courts to promptly handle the ever-increasing workload
they face ? The need is there, it is documented, and
it has not been disputed. Having a sufficient number
of judges available to respond to cases filed by
Californians and their public and private agencies is
a crucial component of access to justice.
In closing, the Judicial Council points out that their
needs assessments actually identified a statewide need
for 361 new trial court judgeships. (Comment 3 discusses
the methodology and assumptions used in computing the
need.) However, in consideration of the state's ongoing
fiscal crisis, the JC is only requesting authorization
for the second 50 judgeships of the 150 new judgeships to
be created over a three year period. (The additional
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proposed conversion of up to 162 SJO positions would not
count towards filling the needed 361 because the
Assessment Project did not differentiate between judges
and SJOs-both were counted as appointed judicial
positions. Thus, converting a SJO position to a
judgeship does not change a court's existing resources or
its need for additional judicial resources.)
2. Projected costs of new judgeships
According to Judicial Council, the average cost for the
second 50 new judgeship is approximately $807,800
annually, which would vary by court depending on costs of
support staff and individual court facility needs. This
cost estimate includes the salary ($171,648) and benefits
for a new judge, salary and benefits for 5 support staff
and 1.1 bailiffs, and office space, operating expenses,
and equipment (including facilities and court security
costs) for the judge and staff. In addition to the
salaries and benefit costs, Judicial Council reports that
there will be also be one-time costs of about $24.4
million for one-time facilities costs and operating
expenses to accommodate the 50 new positions. The
numbers appear to roughly correlate with the costs for
the first 50 judges authorized by SB 56 (Dunn). The 2006
Budget Act included $5.450 million for one month of the
cost of the new judges and support staff. Extrapolated
over one year, the yearly cost could be over $65 million
annually. However, according to Judicial Council, the
one-time facilities cost were much less than the $24.4
million projected for the second 50 since existing
facilities space will be used to house many of the first
50 appointees.
3. New judgeships will be allocated pursuant to uniform
criteria for determining the need for additional judges
AB 159 would provide for the appointment of an
unspecified number of new judgeships allocated to the
various county superior courts pursuant to specified
uniform criteria for determining the need for additional
superior court judges.
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Pursuant to SB 56, on February 23, 2007, the Judicial
Council approved an Update of the Judicial Workload
Assessment, along with a formal methodology for selecting
courts with subordinate judicial officer positions
eligible for conversion, using the same judicial workload
assessment standards that were used for earlier workload
assessments in 2001 and 2004.
Those earlier assessments, as well as the 2007 report,
are based on the following assumptions:
Judicial officers have available, on average, 215
days per year for case resolution, which was reached
by removing weekends and applying a standard deduction
for vacation, sick leave, and participation in
judicial conference and education programs from the
calendar year.
California judicial officers are assumed to spend
an average of six hours a day on case specific
responsibilities and two hours per day on non-case
related administration, community activities, travel,
etc.
(October 26, 2001 Report to Judicial Council, "Results
of statewide assessment of judicial needs including
list of recommended new judgeships," at p. 3.)
Applying the assumptions, judges apparently spend 8 hours
a day on their jobs, with no overtime and weekends. They
commit 6 hours of 215 work days or 1,290 hours in a year
to case resolution. They commit another 2 hours a day,
or 430 hours a year, to administration, travel, and
community activities. An unstated number of days is also
spent on judicial conferences and education, but is
likely to be around 8 to 18 days (depending on sick
leave) if the following calculation is correct in its
assumptions: 365 days minus 215 work days, minus 13
court holidays, minus 104 weekend days, minus 15 days
vacation, and minus up to 10 days for sick leave.
Quantitatively, if the current judicial officers were to
work a 48-hour week instead of a 40-hour week, that 20
percent increase in work time would take care of some of
the need to increase the number of judges. However, this
simplistic approach would not address the need in
counties such as Riverside, San Bernardino, San Joaquin,
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Merced, Fresno and Sacramento where extreme population
growth has far outpaced the ability of the local judges
and commissioners to just work a little harder.
Even with the additional 50 judgeships added pursuant to
last year's SB 56, the 2007 review found that
California's judicial need has grown to 361 judicial
positions. The February 2007 report can be found at the
following link:
http://www.courtinfo.ca.gov/jc/documents/reports/022307ite
m9.pdf
JC's assessed judicial need reflects a three percent
increase over the need calculated in 2004 due to the fact
that 46 courts experienced a growth in judicial workload
from 2004 to 2007. Generally, the report found some
modest growth in filings statewide since 2004, and
concluded that 76 of the 100 judicial positions in the
2004 plan would go to the same courts assigned in 2004
and all but one of the 27 courts in the 2004 allocation
remain on the 2007 allocation plan.
The 2007 report changes can be summarized as follows:
The Del Norte, Humboldt, and Yolo courts would each
receive one new position, up from zero in the 2004
report.
The allocations of the following courts would be
increased as noted:
Fresno, by 1, from 6 (in 2004) to 7 (in 2007).
Monterey, by 1, from 1 to 2.
Placer, by 1, form 3 to 4.
Riverside, by 1, from 12 to 13.
Sacramento, by 2, from 9 to 11.
San Joaquin, by 1, from 5 to 6.
The allocations of the following courts would be
decreased as noted:
Butte, by 1, from 2 (in 2004) to 1 (in 2007).
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Los Angeles, by 3, from 5 to 2.
Madera, by 1, from 2 to 1.
San Bernardino, by 1, from 15 to 14.
San Diego, by 1, from 2 to 1.
Shasta, by 1, from 3 to 2.
Sonoma, by 1, from 3 to 2.
Venture, by 2, from 3 to 1.
Tehama, by 1, from 1 to 0.
4. Stated need for converting up to 162 SJO positions to
judgeships
According to Judicial Council, because of the lack of
authorization for new judgeships since FY 1988-1989, the
court system has had to address its workload issues by
appointing commissioners and referees to act as temporary
judges. However, this "fix" is not acceptable as a long
term solution. Overreliance on SJOs has resulted in many
critical court proceedings being heard by judicial
officers who are not accountable to the public.
Statewide, SJOs typically spend an average of 55 percent
of their time serving as temporary judges; in large
courts the proportion is 75 to 80 percent. Judicial
Council asserts that many SJOs in practice are de facto
judges, but without the elections, authority,
independence, and protections the Constitution provides.
In theory, SJOs are appointed to perform "subordinate
judicial duties," such as hearing small claims cases,
traffic infractions, and certain civil discovery issues.
In practice, however, many SJOs act as temporary judges
and hear misdemeanor and felony cases, family law
matters, and civil cases, limited and unlimited, upon
stipulation of the parties. Judicial Council reports
that where parties have refused to stipulate to the use
of an SJO, cases must be recalendared, thus adding to
court congestion.
According to the 2007 report, even with the 50 new
judgeships added by SB 56, SJO's represent over 21
percent of all authorized judicial positions.
Judicial Council asserts that converting SJO positions to
judgeships would enable courts to make better use of
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judicial resources and assign judges, rather than SJOs,
to perform judicial work.
AB 159 would provide for the conversion of up to 162 SJO
positions in "eligible superior courts, as determined by
the Judicial Council pursuant to uniform criteria for
determining the need for converting existing subordinate
judicial officer positions to judgeships," except that no
more than 16 SJO positions can be converted in any
calendar year.
SINCE THE COURTS OPERATE ON A FISCAL YEAR BASIS, SHOULD
CONVERSIONS OF SJO POSITIONS TO JUDGESHIPS BE MONITORED
ON A FISCAL YEAR BASIS, RATHER THAN A CALENDAR YEAR
BASIS?
In addition, the conversion would be dependent upon
subsequent authorization by the Legislature.
IS THIS PROVISION OF AB 159 NECESSARY IF A FUTURE
LEGISLATIVE ACTION IS NEEDED TO AUTHORIZE THE
CONVERSIONS?
5. Costs of conversion
SJOs are usually paid at 85% of the salary of a superior
court judge, and conversion of an SJO position to a
judgeship would increase the pay for that new position.
Superior court judges are paid about $171,000. Judges
may also get additional benefits that are not provided to
an SJO. No cost estimates have been provided by Judicial
Council; however, any conversion of positions would be
contingent upon subsequent legislative authorization (and
appropriation).
6. Blank authorization reflects continuing concern from
Assembly Speaker about the substantial lack of diversity
in the state's judiciary
When first introduced, AB 159 would have authorized 50
new judges, subject to appropriation by the Legislature
in the 2007-2008 fiscal year. The June 1 amendments
removed that number and instead provides for a blank
number.
According to Judicial Council, that amendment reflects
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the Assembly Speaker's continuing concern about the lack
of diversity in the state's judiciary. This concern
first arose during the final discussions over last year's
legislation (SB 56, Dunn) seeking to authorize 50 new
judgeships. Speaker Nunez insisted that before more
judgeships would be authorized, interested parties in the
appointment process, the Governor, Judicial Council, the
State Bar's JNE (Judicial Nominees' Evaluation)
Commission, all needed to take a conscious look at the
lack of diversity on the bench and recognize the need for
more diversity. To that end, new reporting requirements
were enacted to help identify the ethnic and gender
diversity of members of the judicial branch, or lack
thereof, and to identify the same data within the pool of
applicants for judgeships.
(AB 159 would revise those reporting requirements to
instead require the Governor to collect and release, on
an aggregate statewide basis:
1) demographic data provided by all judicial applicants
relative to ethnicity, race, and gender; and 2)
demographic data relative to ethnicity, race, and gender
of all judicial appointments or nominations as provided
by the appointee or nominee.)
In March 2007, the three reports were issued. Generally,
they confirmed what is readily observable to any court
observer. As stated by the San Francisco Chronicle in
its editorial on March 6, 2007: "Walk into any California
courthouse, and one thing is plain. The judges on the
bench don't reflect the state's diverse make-up. In a
state that is a majority non-white, nearly three-quarters
of some 1,600 judges are white males ?. In a state that's
32 percent Latino, only 6.3 percent of the judges are
from this group. Blacks, who are 8 percent of the state,
make up only 4.4 percent of the judges."
In general, the counties of Alameda, Los Angeles, and San
Francisco were reported to have the most ethnically
diverse superior court benches among California's large
counties, while San Francisco has the highest percentage
of women. In Los Angeles, 39 percent of the judges who
answered the survey described themselves as ethnic
minorities. The breakdown was evenly distributed among
major ethnic groups: 7 percent Asian, 8 percent
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black/African-American, and 8 percent Latino/Hispanic,
while 5 percent listed more than one race. On the
Alameda bench, 37 percent are minorities: 6 percent
Asian, 16 percent black/African-American, 8 percent
Latino/Hispanic, and 8 percent more than one race.
According to these initial statistics, the least diverse
superior court bench amongst large counties is currently
found in Contra Costa, with 82 percent of the bench
reportedly not ethnically diverse.
According to the JC, statewide, 11 percent of judicial
officers declined to identify their ethnicity. Riverside
County led the way in refusing, with 18 of the court's 49
judges -- 37 percent - declining to state. However 32
courts had a 100 percent response rate.
As for women, San Francisco has the distinction of being
the only large county with as many women as men (50
percent each). Other superior courts with a large
percentage of women judges are Yuba (60 percent), Amador
and Plumas (50 percent), Contra Costa (46 percent), Marin
(40 percent), San Mateo (35 percent), Napa and Yolo (33
percent), Alameda, L.A., and San Diego (30 percent each),
and Monterey, Santa Clara, and Stanislaus (29 percent).
Conversely, there are also several trial courts in
California that have all male judges. These superior
courts include: Alpine, Calaveras, Colusa, Del Norte,
Glenn, Inyo, Kings, Lake, Lassen, Mariposa, Merced,
Modoc, Mono, San Benito, Sierra, Sutter, Tehama, and
Trinity.
The Los Angeles Times also commented on the lack of
diversity on the bench in its editorial entitled "Judges
don't do justice to California's diversity." The Times
wrote on March 5, 2007 that:
Gov. Arnold Schwarzenegger's judicial appointments
have hardly reflected California's ethnic diversity.
Of his 209 appointments since taking office, only 15
have been Latino, while 15 have been Asian-American
and nine African American. That's under 20% of his
appointees, although California is a majority minority
state....
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Last year, of the 328 judicial applicants to the
governor's office, 13.4% were Latino, 10.4% were
African American and 4.9% were Asian. (The figures are
estimates because some applicants decline to state
their race.) These percentages look good when
compared to similar percentages of members of the
State Bar who are minorities. But the numbers remain
far below what they would need to be to be
representative of the state's population as a whole.
At the time this analysis was being written, the Governor
has appointed 23 of the allotted 50 positions under SB
56. In terms of diversity, less than 25%, perhaps even
less than 20%, appear to be from a minority racial or
ethnic group. The appointments were also divided about
2/3 men and 1/3 women.
Support: California District Attorneys Association;
California Public Defenders Association;
California Judges Association; Civil Justice
Association of California; Consumer Attorneys of
California; Legal Aid Association of California;
Crime Victims United of California
Opposition:None Known
HISTORY
Source:Judicial Council of California
Related Pending Legislation:None Known
Prior Legislation: SB 56 (Dunn), Ch. 390, Stats. 2006:
Authorized 50 additional superior court
judgeships and required reporting on the
diversity of judges and the applicant pool
for judgeships.
SB 1857 (Burton), Ch, 998, Stats. 2000:
Created 20 new trial court judgeships and 12
new appellate court judgeships.
AB 1818 (Baca), Ch. 263, Stats. 1996: Created
21 new trial court judgeships and 5 new
appellate court judgeships.
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Prior Vote: Assembly Judiciary (Ayes 10, Noes 0)
Assembly Appropriations (Ayes 13, Noes 1)
Assembly Floor (Ayes 78, Noes 1)
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