BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2763 (Committee on Judiciary)
As Amended March 25, 2010
Hearing Date: June 22, 2010
Fiscal: Yes
Urgency: No
SK:jd
SUBJECT
Subordinate Judicial Officer Conversions
DESCRIPTION
This bill would authorize the Judicial Council to convert, in
eligible superior courts, 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 this bill.
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, there are
approximately 375 court commissioner positions in the state's
trial courts.
Responding to the shortage of judges available to handle the
trial courts' workload, the Legislature has considered numerous
bills over the last several years that would have established
(more)
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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). The Judicial Council has tentatively approved
conversions for 14 more already-vacant positions or positions
coming vacant in 10-11. This is contingent on language in the
budget act being enacted.
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, which is nearly identical to last year's AB 942
(Committee on Judiciary), 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
1. 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.)
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Existing law permits the conversion of as many as 162
subordinate judicial officer positions into judgeships in
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, in eligible superior courts, 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 would specify that the
additional conversions authorized by the bill are subject to
the same requirements as apply to conversions under existing
law.
This bill would make various findings emphasizing the unique
nature of family and juvenile law matters, their long-lasting
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.
2. 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
November 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 this bill's family
and juvenile law conversion provisions.
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COMMENT
1. Stated need for the bill
The author writes:
This bill seeks to improve the handling of family and juvenile
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 all 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,
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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.
In 2008 and 2009, the Senate Judiciary Committee unanimously
approved measures (SB 1150 (Corbett) and SB 377 (Corbett),
respectively) 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), and language in the budget act will authorize an
additional 16 for fiscal year 10-11.
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 this bill, the
use of SJOs as temporary judges is expansive:
Over the years, in the face of few or no new judgeships being
created, courts have had to hire SJOs simply to meet the
demands of their workload. As a result, these SJOs have not
simply been assigned to perform subordinate judicial duties,
but in many cases they are assigned as temporary judges,
possessing the full power of judges. The Judicial Council
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believes that family law and juvenile law cases, among the
courts' most sensitive and often most complex, should be
assigned to judges whenever possible. 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 over the same
time period), 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 three years has exceeded the
number of conversions (16) it is authorized to annually execute.
The author contends that by allowing the Judicial Council to
expedite the conversion of additional SJO positions to
judgeships in eligible superior courts, upon vacancy, this bill
will help ensure that more family and juvenile law cases will be
heard by judges in the future.
4.AB 2763 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
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(3) a ranking methodology that provides consideration for courts
that have the greatest need relative to their current complement
of judicial officers.
In addition, this bill would provide that before an eligible
superior court may have an SJO vacancy converted to an AB 2763
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 2763 conversions as apply
to other conversions under existing law.
5.No guarantee that judges will continue to handle family or
juvenile law matters
This bill would require 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 this bill, 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 2763 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 this bill, 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
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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.
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.
This bill would require the Judicial Council to provide the
Legislature, on or before November 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, this bill 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 bill.
7. Amendments taken last year in this Committee are included in
this year's bill
Last year, this Committee heard a nearly identical measure, AB
942, which was later held in the Senate Appropriations
Committee. When that bill was heard in this Committee last
year, amendments were taken to ensure that the measure would
apply the same prerequisites to AB 942 conversions as apply to
conversions under existing law. Additional amendments specified
that the Judicial Council include in its biennial reports an
assessment on the implementation and effect of the additional
SJO conversions authorized by the bill. These amendments are
included in AB 2763.
Support : Executive Committee of the Family Law Section of the
State Bar (FLEXCOM); Judicial Council
Opposition : None Known
HISTORY
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Source : Author
Related Pending Legislation : None Known
Prior Legislation : See Comments 2 and 7.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
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