BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 942
Assembly Committee on Judiciary
As Amended: April 13, 2009
Hearing Date: July 7, 2009
Government Code
NRB:jd
SUBJECT
Judgeships
DESCRIPTION
This bill would authorize the Judicial Council to convert up to
an additional 10 subordinate judicial officer positions (SJOs)
to judgeships each year, upon vacancy, if the conversion of
these additional positions will result in a judge being assigned
to a family or juvenile law assignment previously presided over
by an SJO. This bill also would require the Judicial Council to
provide the Legislature with a special assessment of the need
for new judgeships in the family and juvenile law assignments
for each superior court and a report on the effectiveness of the
additional SJO conversions authorized by AB 942.
(This analysis reflects author's amendments to be offered in
committee.)
BACKGROUND
Under existing law, the Legislature is responsible for
prescribing the number of judges and providing for the officers
and employees of each superior court. (Cal. Const., art. VI,
Sec. 4.) Existing law further permits the Legislature to
provide for, and the courts to appoint, SJOs to assist the
courts in carrying out their duties. (Id. at Sec. 22; Gov. Code
Sec. 71622.) According to the Judicial Council, as of 2007
there are more than 400 court commissioners working in the
state's trial courts.
Responding to the shortage of judges available to handle the
(more)
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trial courts' workload, the Legislature has considered numerous
bills over the last several years that would have established
150 new judgeships and authorized the conversion of up to 162
existing SJOs, limited to 16 per fiscal year, to judgeships upon
vacancy. Largely due to the economic recession, however, just
50 new judgeships have been authorized and funded by the
Legislature and Governor. In contrast, the Legislature and
Governor have authorized the conversion of 16 SJOs to judgeships
in each of the last three fiscal years (07-08, 08-09, and
09-10).
Existing law permits litigants to stipulate to the use of an
attorney, appointed by the trial court, to serve as a temporary
judge to preside over their matter. According to the Judicial
Council, the current shortfall in available judges has led to
SJOs spending an average of 55 percent of their time working as
temporary judges, and in large courts, the number approaches
75-80 percent.
This bill seeks to ensure that a greater number of family and
juvenile law cases are presided over by judges, rather than
SJOs.
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 provides that the Legislature may provide for the
trial courts to appoint officers such as commissioners to
perform subordinate judicial duties. (Cal. Const., art. VI,
Sec. 22.)
Existing law authorizes the courts to appoint subordinate
judicial officers, and sets forth their duties and titles.
(Gov. Code Sec. 71622.)
Existing law authorizes a trial court, upon the stipulation of
the litigating parties, to order a case tried by a temporary
judge who is a member of the State Bar, sworn and empowered to
act until final determination of the cause. (Cal. Const., art.
VI, Sec. 21.)
Existing law permits the conversion of as many as 162
subordinate judicial officer positions into judgeships in
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eligible courts, not to exceed 16 conversions each fiscal year,
based on specified criteria developed by the Judicial Council.
(Gov. Code Sec. 69615.) Beginning in the 2008-09 fiscal year,
such conversions may only take effect upon formal notification
to the Legislature and subsequent ratification by the
Legislature either in the annual Budget Act or another
legislative measure. (Id.)
This bill would authorize the Judicial Council annually to
convert up to 10 additional subordinate judicial officer
positions to judgeships, upon vacancy, where the conversions
will result in a judge being assigned to a family or juvenile
law assignment previously presided over by an SJO.
This bill makes various findings emphasizing the unique nature
of family and juvenile law matters, their longlasting impact on
children, and the importance of having judges who are
accountable to the public presiding over such matters. The
measure states that it is the intent of the Legislature to
authorize these conversions in order to expedite the timeline
for ensuring that family and juvenile law matters are presided
over by judges.
Existing law requires the Judicial Council to report to the
Legislature and Governor by November 1 of every even-numbered
year on the factually determined need for new judgeships in each
superior court using specified uniform criteria. (Gov. Code
Sec. 69614.)
This bill would require the Judicial Council, on or before June
30, 2011, to provide the Legislature a "special assessment" of
the need for new judgeships in the family and juvenile law
assignments for each superior court.
This bill also would require the Judicial Council to biennially
report, beginning with its November 2012 "judicial needs"
report, on the implementation and effect of the family and
juvenile law conversion project.
COMMENT
1. Stated need for the bill
The author writes:
This bill seeks to improve the handling of family and juvenile
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law cases by increasing the likelihood that these matters are
presided over by judges and not subordinate judicial officers.
The bill further seeks to ensure that there is an appropriate
understanding of the shortage of family and juvenile law
judges around the state so that this shortfall may begin to be
remedied in an appropriate manner.
2. The ever-present need for new judgeships
In its most recent Report to the Legislature on the Need for New
Judgeships, the Judicial Council assessed the statewide need for
judicial officers and the assessed judicial need. The Judicial
Council compared the need for judicial officers to the number of
statewide authorized judicial positions, concluding, "[t]he
total statewide need for judicial officers is currently
equivalent to 2,348 positions. The number of Authorized
Judicial Positions is currently 2,021. Thus the net need for
new judgeships is 327 or, as a percentage of the total need, the
judicial branch has a 13.9 percent shortfall."
The shortage of judges available to handle the trial courts'
workload has not been lost on the Legislature. Over the last
three years, the Legislature has considered four separate
measures designed to help the trial courts with this problem.
In 2006, the Legislature passed, and the Governor signed, SB 56
(Dunn, Chapter 206, Statutes of 2006), which authorized the
creation of 50 new judgeship positions to be filled pursuant to
budget authorization beginning May 2007. The SB 56 judgeships
were ultimately funded and, as of this writing, 49 of the 50 new
judges have been appointed.
In 2007, the Legislature passed, and the Governor signed, AB 159
(Jones, Chapter 722, Statutes of 2007), which authorized the
creation of an additional 50 new judgeships to be filled
pursuant to budget authorization beginning May 2008. AB 159
also authorized the conversion of up to 162 subordinate judicial
officer (SJO) positions to judgeship positions upon a voluntary
vacancy of the SJO position, up to a maximum of 16 conversions
per fiscal year. The funding for the 50 judges authorized by AB
159 later was deferred to on or after June 1, 2009. That
funding was delayed again to July 2009 and then, pursuant to the
February 2009 budget agreement, funding for the positions was
made contingent upon reaching the trigger for federal stimulus
funds. Once it was determined that the trigger mark would not
be met, funding for the AB 159 judgeships was automatically cut
from the budget.
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In 2008 (SB 1150, Corbett) and 2009 (SB 377, Corbett), the
Senate Judiciary Committee unanimously approved measures that
would have authorized an additional 50 trial court judgeships.
However, due to the unprecedented international economic
recession and its devastating effect on the state budget, both
measures were held in the Senate Appropriations Committee. In
contrast, the Legislature and Governor have authorized the
conversion of 16 SJOs to judgeships in each of the last three
fiscal years (07-08, 08-09, and 09-10).
According to the Judicial Council, since 1989, the total number
of authorized trial court judgeships has grown by only 8.5
percent while, during the same period, the total population in
California grew by more than 33 percent. This gap between
population growth-and increased caseloads as a consequence-and
the number of judges continues to widen.
3.The expanding role of SJOs.
California's trial courts have relied on SJOs for decades to
assist in managing their workload. However, the perpetual
shortage of authorized judgeships has prompted courts to assign
SJOs as temporary judges. In this capacity, there is nothing
"subordinate" about the role of SJOs in the judicial process.
Increasingly, SJOs are performing some of the most complex and
sensitive judicial duties, including core judicial duties such
as adjudicating juvenile and family law cases. While SJOs must
meet specified criteria for the job, SJOs are, unlike judges,
selected by the courts and not subject to elections. As noted
in the Judicial Council's letter of support for AB 942, the use
of SJOs as temporary judges is expansive:
As a result of the growth in SJO positions (60 percent from
1989 to 1999, while the number of judges increased only by 1
percent), it has been estimated that SJOs spend an average of
55 percent of their time working as temporary judges, and in
large courts, the number is more like 75-80 percent. In
practice, many SJOs are de facto judges, but without the
accountability to the public or the authority and independence
the Constitution provides.
According to the Judicial Council, the number of annual SJO
vacancies created over the last two years has exceeded the
number of conversions (16) it is authorized to annually execute.
The sponsor contends that by allowing the Judicial Council to
expedite the conversion of additional SJO positions to
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judgeships, upon vacancy, AB 942 will help ensure that more
family and juvenile law cases will be heard by judges in the
future.
4.AB 942 conversions limited to those courts with a factually
demonstrated need for new judgeships.
Similar to the conversions authorized under existing law, this
bill would authorize up to 10 additional SJO conversions only in
those superior courts selected pursuant to specified uniform
criteria for determining the need for additional superior court
judges. Further, an eligible court would only be entitled to
the judgeship if the conversion will result in a judge being
assigned to a family or juvenile law assignment previously
presided over by a subordinate judicial officer. (See Comment
5.)
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.
Under existing law, these uniform criteria for determining
additional judicial need must 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.
The author's amendments would provide that before an eligible
superior court may have an SJO vacancy converted to an AB 942
judgeship, the Judicial Council first must notify the
Legislature of the proposed conversion and the Legislature must
ratify the proposed conversion in the annual Budget Act or
another legislative measure. In this respect, this measure
applies the same prerequisites to AB 942 conversions as apply
under existing law.
The two author's amendments for this section are:
On page 4, line 26, after "positions" insert "in eligible
superior courts"
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On page 4, line 30, after the period insert "The additional
conversions authorized by this subparagraph are subject to the
requirements of paragraph (3)."
5.No guarantee that judges will continue to handle family or
juvenile law matters
AB 942 requires that an SJO may only be converted to a judgeship
"if 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." Clearly, the purpose of
this provision is to ensure that more family and juvenile law
matters are presided over by judges. However, the measure does
not require that the resulting family or juvenile judicial
assignment continue for any period of time. In other words,
once an SJO position is converted, a trial court could assign an
additional judge to a family or juvenile assignment for as short
as one day, and fully comply with the statute.
The Judicial Council, which supports AB 942, has considered this
possibility. And while the Council acknowledges such an
anomalous circumstance is technically possible, it is confident
this will not come to pass. As the Council explains:
Prior to approving a request for an AB 942 conversion from an
eligible superior court, the Judicial Council will require the
presiding judge of that court to send a letter attesting to
the court's intention to assign a judge to a family or
juvenile law assignment as a result of the conversion.
Pursuant to AB 942 (as proposed to be amended by the author),
the Judicial Council will include in its biennial report to
the Legislature, beginning with the November 2012 report, a
discussion of the implementation and effect of this bill's
allowance of 10 additional conversions. The Judicial Council
will be able to demonstrate in those reports that the courts
are abiding by their commitment to the council to ensure a
judge is assigned to a family law or juvenile law assignment
previously assigned to an SJO. The Judicial Council
understands that if it appears that the council and the courts
are not complying with the letter or the spirit of the law,
the Legislature could act to remove the authority to convert
additional positions.
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6.New reporting requirements
Existing law requires the Judicial Council to report to the
Legislature by November 1 of every even-numbered year on the
general need for new judgeships, based on uniform standards and
specified criteria, in each superior court.
AB 942 requires the Judicial Council to provide the Legislature,
on or before June 30, 2011, a special assessment of the need for
new judgeships in the family and juvenile law assignments for
each superior court. By not requiring this special assessment
to be included in the regularly scheduled November 1, 2010
report, the 2011 deadline is designed to give the Judicial
Council adequate time to complete this newly required
assessment. Beginning in 2012, however, AB 942 would require
that the Judicial Council include in its biennial reports an
assessment on the implementation and effect of the additional
SJO conversions authorized by the measure.
The author's amendment for this section is:
On page 3, line 17, delete "as part of" and insert "beginning
with"
Support : Judicial Council; Consumer Attorneys of California
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : See Comment 2.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Floor (Ayes 77, Noes 2)
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