BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 405 (Corbett)
As Introduced
Hearing Date: March 22, 2011
Fiscal: Yes
Urgency: No
SK:rm
SUBJECT
Subordinate Judicial Officers
DESCRIPTION
Existing law permits 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 would
result in a judge being assigned to a family or juvenile law
assignment previously presided over by an SJO. Existing law
requires that conversion to be ratified by the Legislature by
legislation other than the annual Budget Act. This bill would
ratify the Judicial Council's conversion authority for the
2011-12 fiscal year.
BACKGROUND
Under current 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 360 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 four fiscal years (07-08, 08-09, 09-10, and
10-11). And, at the time of the writing of this analysis,
language in the budget act will authorize an additional 16
conversions for fiscal year 11-12.
Last year, the Legislature passed and the Governor signed AB
2763 (Committee on Judiciary, Chap. 690, Stats. 2010) which
authorized the Judicial Council to convert up to 10 additional
SJOs to judgeships each year, upon vacancy, if the conversion of
these additional positions would result in a judge being
assigned to a family or juvenile law assignment previously
presided over by an SJO.<1> Under AB 2763, that conversion must
be ratified by the Legislature by legislation other than the
annual Budget Act. This bill would ratify the Judicial
Council's conversion authority for the 2011-12 fiscal year.
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.) Under
existing law, 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
also authorizes the courts to appoint subordinate judicial
officers, and sets forth their duties and titles. (Gov. Code
Sec. 71622.)
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.)
Existing law authorizes the Judicial Council to also convert
annually, 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
---------------------------
<1> In 2009, a nearly identical bill, AB 942 (Committee on
Judiciary), was held in the Senate Appropriations Committee.
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assigned to a family or juvenile law assignment previously
presided over by an SJO. (Gov. Code Sec. 69615.) Existing law
requires that these conversions must be ratified by the
Legislature by statutory enactment other than the annual Budget
Act. (Id.)
This bill would ratify the Judicial Council's authority to
convert 10 SJO positions to judgeships in the 2011-12 fiscal
year where the conversion will result in a judge being assigned
to a family law or juvenile law assignment previously presided
over by an SJO.
This bill would provide that this conversion shall be in
addition to any action taken under existing law to convert up to
16 SJO positions per fiscal year to judgeships.
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COMMENT
1. Stated need for the bill
The author writes:
Seeking 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,
SB 405 (Corbett) ratifies the authority of the Judicial
Council to convert 10 subordinate judicial officer positions
to judgeships in the 2011-12 fiscal year where 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.
. . .
For the past four years since the conversions of SJO positions
began . . . more than 16 SJO vacancies occurred in courts
eligible for conversion of these positions to judgeships. The
annual cap of 16 conversions in each fiscal year has resulted
in courts either keeping the vacancy for an extended period,
impacting the ability to serve the public, or filling the
vacant position with a new SJO, impacting the ability to
convert positions consistent with the stated intent of the
Legislature that these positions be converted to judgeships in
order to ensure that critical case types, including family,
probate, and juvenile law matters, can be heard by judges.
2. The ever-present need for new judgeships
In its recent report to the Legislature entitled The Need for
New Judgeships in the Superior Court: 2010 Update of the
Judicial Needs Assessment, the Judicial Council evaluated 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 2,352 positions. Including
50 statutorily authorized but not yet funded and therefore
unfilled judicial positions, the number of authorized judicial
positions is currently 2,022. Thus, the net need for new
judgeships is 330 or, as a percentage of the total need, the
judicial branch has a 14 percent shortfall."
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The shortage of judges available to handle the trial courts'
workload has not been lost on the Legislature. Over the last
several 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,
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 four fiscal years (07-08, 08-09, 09-10,
10-11). And, at the time of the writing of this analysis,
language in the budget act will authorize an additional 16
conversions for fiscal year 11-12.
According to the Judicial Council, for the time period 1989 -
2008, 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.
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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
believes that family law and juvenile law cases, among the
courts' most sensitive and often most complex, should be
assigned to judges whenever possible. 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 Legislature's approval last year of AB 2763 recognized that
allowing the Judicial Council to expedite the conversion of
additional SJO positions to judgeships in eligible superior
courts where the conversion would result in a judge being
assigned to a family law or juvenile law assignment helped to
ensure that more family and juvenile law cases would be heard by
judges in the future. This bill would ratify that conversion
for the 2011-12 fiscal year.
4.Conversions limited to those courts with a factually demonstrated
need for new judgeships
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Under existing law, up to 16 SJO positions per fiscal year may
be converted to judgeships upon vacancy. The 16 positions
converted each year are from the total 162 positions in 25
courts identified by the Judicial Council as eligible for
conversion based on its uniform allocation standards for
determining the relative judicial need for conversion of a
vacant SJO position to a judgeship. Last year, AB 2763
authorized the annual conversion of an additional 10 SJO
positions to judgeships and required that those conversions be
subject to the same uniform allocation standards already
required to be used for the conversion of the 16 SJO positions.
To determine courts with subordinate judicial officer positions
eligible for conversion, the Judicial Council adopted a formal
methodology using the same judicial workload assessment
standards that were used for earlier workload assessments in
2001 and 2004. Under existing law, these uniform criteria-which
also apply to the additional 10 SJO conversions provided under
AB 2763-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.
According to the sponsor, the Judicial Council is currently
evaluating whether those workload assessment standards need to
be updated to reflect "technological and organizational changes
in the courts, efficient case management practices, compliance
with legal mandates, and respect for the due process rights of
litigants." The Council has surveyed various courts to obtain
more precise information regarding case-processing times, and
this information will be evaluated to determine whether or not
current judicial officer case weights used in the judicial needs
assessment need to be modified.
5.No guarantee that judges will continue to handle family or
juvenile law matters
This bill would ratify the Judicial Council's authority to
convert 10 SJO positions to judgeships in fiscal year 2011-12
where 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
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this provision and existing law is to ensure that more family
and juvenile law matters are presided over by judges. However,
neither this bill nor AB 2763 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.
When this Committee heard AB 2763 (and the previous year's AB
942), the Judicial Council indicated that it had considered this
possibility. The Judicial Council acknowledged that while such
an anomalous circumstance was technically possible, it was
confident that it would not come to pass. At the time, the
Judicial Council explained:
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 �AB 2763], 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.
�See Comment 6.] 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.
The Judicial Council recently adopted guidelines for the
conversion of additional SJOs authorized by AB 2763. Those
guidelines require courts seeking one of the 10 additional SJO
conversions to "confirm in writing that the conversion will
result in a judge being assigned to a family law or juvenile law
assignment that was previously presided over by an SJO." The
sponsor indicates that the Superior Court of Orange County has
submitted a request for a conversion, should this bill be
enacted.
6.Reporting requirements
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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.
In addition, existing law also requires 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 provisions contained in AB 2763.
With respect to the 10 SJO conversions to family law or juvenile
law assignments, existing law requires the Judicial Council to
provide to 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. The
sponsor indicates that the Judicial Council is on track to
provide these reports to the Legislature.
Support : Executive Committee of the Family Law Section of the
State Bar (FLEXCOM)
Opposition : None Known
HISTORY
Source : Judicial Council
Related Pending Legislation : None Known
Prior Legislation : See Background and Comment 2.
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