51 Days: A Constitutional Crisis

Posted on July 27, 2011

15


Printed below is a portion of a letter to ACJ members provided to Judicial Council Watcher.  As we have indicated in previous posts, the Judicial Council has undermined the will of the electorate, a strong majority of this states judges, court workers across the state and the state legislature. Never contemplated by us was that this represents a constitutional crisis but it didn’t take us long to jump on that bandwagon.

Pravda, aka California Court News only covered the most innocuous part of a sentence uttered by Judge Feinstein which we have highlighted below in red to demonstrate yet another element of the JC/AOC’s disinformation campaign.

 
 

July 25, 2011

Dear Members and Fellow Judges:

We are disappointed to report to you that on July 22, 2011, 17 members of the Judicial Council voted against the proposal by the Alliance of California Judges to provide one year of full mitigation of budget cuts to the trial courts.

This disappointing but perhaps predictable outcome followed an appeal by Judge David Lampe from Kern County on behalf of the Alliance, and a very strong appeal by Judge Katherine Feinstein of San Francisco. Presiding Judge-Elect Judge Laurie Earl of Sacramento made similar and very effective presentation on behalf of her court. Court employees also spoke passionately for this one-time relief. The Alliance’s specific proposal was also supported by a general appeal by outgoing CJA President, Judge Keith Davis.

The action of the Judicial Council and the Chief Justice therefore ignored the requests of Los Angeles judges, San Francisco judges, Sacramento judges, Kern judges, court employees, and the two judge’s organizations that together comprise virtually the entire bench of California. This bears repeating: The council and Chief Justice ignored the voices of the two organizations that together comprise virtually the entire bench of California, choosing instead to adopt the position of the AOC.

A motion which mirrored the Alliance proposal was offered by Judge David Wesley and seconded by Judge Burt Pines, both of Los Angeles. This motion was defeated after Judge Wesley and Judge Pines made courageous and reasoned appeals. Judge Wesley and Judge Pines were the only two that voted for the measure. The 17 members who voted “NO” included the Chief justice. These 17 members of the Council voted against the motion even after it was made clear that as much as $82 million of additional relief to the trial courts was available under the terms of the Budget Act, and perhaps more, if additional curtailment of the CCMS project was considered.

The Judicial Council members who voted “NO” are:
Hon Tani Cantil Sakauye, Chief Justice of California
Hon. Marvin Baxter, Associate Justice of the Supreme Court
Hon. Judith Ashmann-Gerst, Second District Court of Appeal
Hon Henry E Hull, Third District Court of Appeal
Hon Douglas P. Miller, Fourth District Court of Appeal
Hon Stephen Baker, Shasta Superior Court
Hon. James Herman, Santa Barbara Superior Court
Hon. Ira Kaufman, Plumas Superior Court
Hon. Sharon Waters, Riverside Superior Court
Hon. Mary Ann O’Malley, Contra Costa Superior Court
Hon. Winifred Younge Smith, Alameda Superior Court
Hon Kenneth So, San Diego Superior Court
Hon Erica R. Yew, Santa Clara Superior Court
Note: In addition to voting “NO”, Judge Yew also opined that judges were not
bearing their fair share of the “sacrifice” and asked that consideration be given
to again calling for a waiver of judicial salaries.
Senator Noreen Evans
Miriam Krinsky (Attorney)
Edith Matthai (Attorney)
James Penrod (Attorney)
Note: There are 21 voting members of the Council. There are also a number
of non-voting “advisory” members which include San Diego Superior Court
CEO Mike Roddy, Marin CEO Kim Turner, and Judge Terry Friedman, Ret., Los
Angeles. These members also spoke against the Wesley/Pines motion.

Judicial Council members who voted “YES: are:
Hon. David Wesley, Los Angeles Superior Court
Hon. Burt Pines, Los Angeles Superior Court

Judicial Council members absent:
Assemblyman Mike Feurer (this member is routinely absent)
Joel Miliband, Attorney.

This is a constitution crisis for the branch. The Judicial Council’s refusal on July 22 to authorize additional trial court relief of at least $82 million while preferring a large central bureaucracy, a questionable computer system, and also refusing to briefly delay site acquisition and preliminary work for costly court construction that is nowhere close to breaking ground, demonstrates that the problem at its heart is an issue of governance. The trial courts must assume a co-equal role in the administration of our courts and take charge of their own funding. This is the essence of AB 1208, now on the Assembly floor. This bill provides direct funding of the trial courts without intervention of the Judicial Council to siphon funds for projects that lack specific legislative authorization, or those that lack wide consensus within the branch. AB 1208 will be enacted in the next session with the help of all of you and judges throughout the state.

The Alliance also believes that we can no longer function through presumed governance by an appointed, undemocratic Judicial Council. Reforms must take place that put trial court funding and administration into the hands of peer-elected judges. The Judicial Council is not a governing body, and its authority over funding is purely a creature of relatively recent statutory authority. The Alliance will continue to work toward democratization.

Judges and Justices who recognize the importance of independent trial courts must join together.

In only 22 months, our organization has grown to over 400 members. Almost all are active trial judges. We have Presiding Judges, Assistance Presiding Judges, former Presiding Judges, Appellate Justices, and members who have served on the Judicial Council, Council advisory committees, and as directors and officers in other judicial organizations. We have judges of all political persuasions, views, and walks of life. As Directors, we know that for every judge who agrees with our principles and has joined us, there are many more who agree but who have not joined. We ask that each current member talk to your fellow judges on your bench, and throughout the state, and encourage them to sign on. Our strength is in numbers. Please tell your fellow judges that all they need to do for now to be a member is to notify us by email at
allianceofcaliforniajudges@gmail.com
that they wish to be a member, and to provide us with the email address they wish to use for communication. We are a private organization and do not disclose our member list, although many of our judges proudly declare that they are members.

Following are transcripts of Judge Lampe’s and Judge Feinstein’s remarks.
Note: Please keep in mind that the transcripts are machine-generated transcripts provided by the AOC contemporaneously with the live audio broadcast. They are replete with errors. We have made an effort to correct obvious mistakes and misspellings in the machine transcript.

Thank you for your continued support.

Directors,
Alliance of California Judges
______________________________________

LATE UPDATE: The AOC announced today that Ron Overholt, William Vickrey’s second in command, has been named “Interim Director” of the AOC by the Judicial Council. According to the AOC press release, the Council took this action at Friday’s meeting. For whatever reason, this closed-door action of the Council, not mentioned at the session open to the public, was not revealed until today.

______________________________________

COMMENTS OF KATHERINE FEINSTEIN, PRESIDING JUDGE, SAN FRANCISCO SUPERIOR COURT

Madam Chief Justice and members of the Council, thank you for the opportunity to address you today. San Francisco is the first county to suffer the serious impacts of the staggeringly inadequate state budget. This week as you all know, we delivered layoff notices to 41% of our remaining court staff and announced plans to close 25 of our 63 courtrooms.

On a personal note, following in Judge Lampe’s footsteps here, I will be forever grateful to the many justice, judges,and court executives and members of the legal community who called from all around the state offering help and consolation during this crisis. By contrast, I still remained stunned that neither I nor our court executive officer has received even a single phone call from anyone in the Administrative Office of the Courts, the entity that I heard you just say, Madam Chief Justice, on the radio this morning that is supposed to provide service and support to the trial courts, not a word.

San Francisco may be the first trial court to fail, but I know that others are soon to follow, and I know you know that too. Perhaps the AOC, as your staff agency, will offer them some help and support. I hope so. I’m addressing you today because if I can help save one job for one employee or keep one more courtroom open, I’m going to do whatever it takes to do so.

You hold in your hands the ability to mitigate as large portion of the effects of this disastrous situation, and the question is whether you will choose to do so. I wish today to add my voice to those of so many of my colleagues around the state in asking you to make additional funds available for our trial courts. In doing so, I realize that this will require a close and painful reexamination of undertakings previously considered sacrosanct.

First, I do not quarrel with the needs of my sister counties for safe and adequate courthouses, but the fact that the AOC ever proposed spending $26 million on a single courtroom in a county with two judges, five staff, and a total county population of 1175 people, and likewise spending $52 million on three courtrooms in a county with two judges and 17 staff members is to my mind absurd. I realize that these projects have now been curtailed in scope, but how could projects so out of proportion with plausible need ever have been deemed reasonable in the first place?

This leads me to ask that you take a hard look at the staff of the Administrative Office of the Courts, which recommended these expenditures. In 1998, the AOC had 268 employees. Since 1998, that number has grown by more than 3 1/2 half fold, 105 in the last three years alone. While every trial court in the state has been tightening its belt, the AOC has been loosening its. While we and other trial courts are firing, your staff is hiring. This wild expansion of an administrative bureaucracy in these times is simply unconscionable.

Your staff has overseen the expenditure of at least $400 million on the still-dysfunctional California Court Case Management System. Despite these huge expenditures, CCMS is not fully operational in a single county. Bits and pieces of it are operational in only seven counties. CCMS may have been a great idea when ideas were grand and money was plentiful. Today, it is clearly over designed, over budget, and overdue.

The estimates to have CCMS up and running in all counties range up to $2 million. There’s no reason to believe that this amount of money will be available before the technology upon which CCMS is built is obsolete. Allow the counties who have CCMS who want it and pay for it can keep it but don’t force us to abandon basic access to justice in favor of feeding this technological beast with trial court trust funds.

I urge you to reexamine your allocations immediately.

These runaway plans, systems, and staff are sucking tens of millions of dollars from the trial courts and that must be reversed. I know these are trying time not just for the council, but I know our citizen’s access to justice is fundamental and paramount. That access occurs in our trial courts. For our justice system to survive, it is your solemn duty to preserve this access. To fulfill this duty in tough times, our branch needs to jettison projects that divert us from the preservation of our citizenry’s fundamental rights. If you are true to your mission, I know that you will do this.

Thank you very much.
__________________________________

COMMENTS OF JUDGE DAVID LAMPE, KERN COUNTY SUPERIOR COURT,
PRESIDENT OF THE ALLIANCE OF CALIFORNIA JUDGES

Good morning, Madam Chief Justice, and member of the Judicial Council. My name is Judge David Lampe from Kern County, and I am a Director of the Alliance of California Judges, and I speak today on behalf of the 400 judges who are members of that organization. Before I do that, since I’m standing up here, I hope you will indulge me a personal moment to say in the spirit of the Chief Justice’s initial remarks that I do not envy you in the choices that fall to each one of you today.

We can all talk in the abstract about reductions, cuts, mitigation, and budget numbers, but we all understand that we are really talking about people’s lives. Court employees, administrative employees, and the people of our communities. We are all under stress so personally today I pray for your utmost discernment.

And speaking now for the Alliance, you each have a copy of a letter that we issued and also hopefully you have a copy of a memo that we did yesterday where we tried to be as specific as possible about our proposals. I will not repeat those since you have them in writing, but I will summarize.

We ask first that you fully mitigate the impact of the budget cuts to the trial courts this year. And second, we ask that you defer any allocation decision for fiscal year 2012 and 2013. It is, therefore, our specific proposal that you find a way to add $135 million of trial court mitigation this year.

We see that it is your task to decide upon the number and to direct staff to develop the options to reach that number. In this environment you cannot fairly ask staff to decide upon the only options and limit yourselves to those options. We are the judges. You are the leaders. You decide the number and you tell staff to get to that number.

We also know that our proposal, as it stands currently, exceeds statutory authority. I believe the members of this council understand this but there may be some in the audience who may not know that there is a cap in the budget act this year of $150 million for mitigation from specific funds. We do believe that there’s additional mitigation money that is available. As we calculate it, the Trial Court Budget Working Group has proposed about $124 million of mitigation. We see that $56 million of that is attributable to one year’s CCMS deferral. And we believe that should not count against the cap for mitigation because that money should be accounted to the Trial Court Trust Fund–in other words, the Trial Court Trust Fund that was allocated for that purpose. So we see that that leaves–under statutory authority–approximately 82 million of additional mitigation that is available.

We also believe that there is additional mitigation available in any Trial Court Trust Fund Money that is still directed at the operation, maintenance, or development of the CCMS project. Frankly, it is difficult to assess how much of that funding is available and perhaps staff can address that for you today. But if that money is available, we believe that this amount should also be redirected. We also recognize, Senator Evans, that this proposal for further mitigation may require additional legislative approval for reallocation with the branch appropriation. If so, we do ask you to seek that additional authorization.

Our trial courts need this further mitigation this year because there is no question with the permanent reductions imposed by the legislature that the trial courts are going to have to restructure and they will necessarily have to reduce their reserves. The Alliance does not support the redirection of any one court’s reserves for the benefit of any other in this year. There is really no fair mechanism presently identified to do this. However, additional mitigation will further ease the immediate impact of cuts for each court so that these cuts may be done over time.

What we’re looking at here, we all recognize that we’re already at the end of July. That’s no one’s fault here, but we also are under a statutory obligation to give a 60-day notice for any significant reductions,for some type of significant reduction, so that’s going to leave the courts with about 6 or 7 months for some courts to try to achieve as much as 20%, some courts much more than that, in a very short period of time to get what we anticipate will be next year’s reductions. Additional mitigation will allow this to be–the reserve to be–what we’re calling ratably applied over perhaps a 3-year period of time so that the cuts that appear to be necessary can be phased.

In conclusion, I would say that 14 years ago we were led into a great vision to remake the judiciary and to expand central authority. That vision came with the promise of stable and adequate funding, both in goods and in bad times. For now–and I emphasize only for now–that vision and promise has failed. And that is no one’s fault. There is no sin in failure. The sin may be in failing to recognize the circumstances. If you mount a mission to summit at Mount Everest, sometimes the weather changes and you have to abandon the quest. If you insist on plowing forward, that’s when you get killed.

I also think as judges we must be careful not to think too much of ourselves. We’re just judges. We’re not politicians or policymakers. We need to marshal the courage to return to our core humility which is the simple task of presiding over or deciding the cases for the citizens of our communities. That’s what we do. That task needs to be funded as much as possible. Everything else must fall to that.

Thank you very much.

________________________________________________________

Bill Girdner of Courthouse News sums it up nicely – Which One is Next?

AOC Watcher is on Domino Watch – which courts are to fall next due to Judicial Council’s misplaced priorities?

AOC Watcher – Domino Watch: Tehama County

AOC Watcher – Domino Watch: Alameda County