Judge Glen Reiser – The JC’s latest straw man & the fallout continues from LAO report

Posted on October 5, 2011

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It’s becoming obvious that the Judicial Council and the AOC need to take a better look at the man in the mirror instead of trying to place the blame at the feet of others.

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If you want to make the world a better place, take a look at yourself and make that change…

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A letter from the Alliance of California Judges

Dear Members and Others:

On September 25, 2011, Ventura Superior Court Judge Glen Reiser, a member of the CCMS “Operational Advisory Committee” sent to all judges of that court an email outlining his understanding of the status of the CCMS project, including the status of its warranty, which is in jeopardy.  Judge Reiser opined that “project opponents” were possibly responsible for delays in the project.

Two days later, the article below, titled “Computer Contractor Agrees to $16 Million Refund”, appeared in the Recorder newspaper.

Ventura Superior Court Judge James Cloninger sent his colleagues a response to Judge Reiser’s email,  which we believe accurately assesses the situation.  We have included both Judge Reiser’s email to the Ventura bench, and Judge Cloninger’s response.  We have also learned from a member of the Operational Advisory Committee that there is a further delay in CCMS acceptance testing.  We await Justice Bruiniers’ announcement.  Of course, this simply underscores the need to extend the warranty to protect the taxpayers.

Alliance Director Judge Susan Lopez Giss has made an information request relative to the matter of the refund/credit.  Her letter to the AOC’s interim Director Mr. Overholt and to the head of the CCMS Governance Committee, Justice Terence Bruiniers, is also included herein.

Finally, we include a story from the Courthouse News Service.  We make no comment on the story since obviously it deals with pending litigation.

Thank you for your continued support.

Directors,
Alliance of California Judges
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Computer Contractor Agrees to $16 Million Refund

Cheryl Miller

SACRAMENTO — Deloitte Consulting, the architect of the judiciary’s Court Case Management System, has agreed to credit the Administrative Office of the Courts $16 million for delays in the long-awaited project.

Final delivery of the computer network was pushed back 10 months last year because of quality issues detected during testing, the state auditor concluded in her critical February review of CCMS. At the time the report was issued, the AOC said it was negotiating with Deloitte for a possible refund for the delay, although it refused to disclose the estimated figure because of “confidentiality concerns,” the auditor said.
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But in a closed-door meeting with legislative staffers at the state Capitol on Tuesday, AOC officials said they had secured a $16 million credit, which will be used to support CCMS deployment. The $16 million covers what the branch paid for services and equipment that weren’t used during the delay, said Ronald Overholt, interim administrative director of the courts. The 10-month delay “was in large part due to some internal issues Deloitte had with staffing and internal management,” said Justice Terence Bruiniers, chairman of the Judicial Council’s CCMS executive committee. “Deloitte had to do some internal reorganizing to get things back on track and they did that.”
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A Deloitte spokeswoman did not respond to a request for comment Tuesday afternoon. The fact that significant problems with CCMS were not caught until relatively late in the testing process was a sign that Deloitte and the AOC were not adequately managing the project’s development, an IT expert retained by state auditor Elaine Howle concluded in February. Since the auditor’s report, two private firms have given CCMS passing grades. K3 Solutions concluded that “CCMS will perform as designed” but it also noted several areas that posed a moderate risk to the project’s success, including the need for more “rigor and efficiency” in quality reviews.
The branch has spent approximately $400 million to date on the project, and the final cost to develop and deploy CCMS statewide could push beyond $1.9 billion, according to the state auditor’s office.
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The Judicial Council is scheduled to discuss options for installing CCMS throughout the state at its October meeting.

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Subject: CCMS warranty
From:  Glen Reiser

9/25/11

Here is what I understand relative to the CCMS warranty issue:
Software contracts typically contain a contractual warranty period, agreed upon in advance, commencing from product delivery acceptance. CCMS final product acceptance is still pending completion of the financial reporting piece; and completion of judicial officer testing , both of which are expected to be concluded by the end of October 2011.
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At that point, as the contract has been represented, the California courts have a maximum of eight months in which to commence the contractual one-year warranty period. Mathematically, therefore, under the present scenario, and assuming the entire eight months were utilized, it would appear that the final product warranty period would expire at or about the end of June 2013.
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Under normal circumstances, twenty months would be a very adequate period of time to load the software locally and identify and assert warranty claims with respect to issues relating to workmanship within the contractual scope of work.
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What has happened here is that certain project opponents, directly or indirectly through legislative financial impediment, may have unintentionally caused a delay in deployment in any court, which could jeopardize our collective ability to timely identify and ameliorate warranty issues relating to the software.(emphasis added by JCW)
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The wisdom in allowing $332 million software which we now own to become deployed in at least one county as to all case types, and at the same time, timely identifying warranty defects to be identified and corrected, is self-evident. Opponents to such a minimalist strategy should not be heard to advocate de facto forfeiture of the contractual warranty period through continued project “pause” in all counties, and then in the next breath, complain about potential expiration of the contractual warranty.
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G

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From:  James Cloninger

10/4/11
On Sunday, September 25, 2011 you sent an email to all judges regarding your understanding of the “CCMS warranty” issue.  I gathered further information on this issue from various sources including public information from the California Judicial Council website.  I believe your statement on this issue overlooks several important elements.

In an unedited transcript of proceedings of Judicial Council of California meeting of July 22, 2011, at page 44, Justice Bruiniers responds to a question on the CCMS warranty issue as follows:

“To answer your second question first, the answer is yes. And in terms of the warranty period, frankly, two things, one, we’ve been focused on closing out our development contract, and we are almost there. The — have we had any actual discussions about extending the warranty period? No. And again, I think part of the answer there is at this point we don’t know what would be necessary in terms of that extension if — I would assume it would have some cost associated with it. I would still like to find a way within our budget constraints, and I know the trial court’s certainly would, to find a way to get this into a trial court, at least some module have it, into a trial court early enough that we take full advantage of the warranty period. Now, is that when specifically? That’s a question we’re going to try and answer for the council here when we come back to you in October. The — I do know that, you know, a significant number of trial courts are clearly interested in trying to share their resources and to work with branch resources and their resources to get CCMS deployed into their courts,this is going to have to be a cooperative and collaborative process going forward among the course who want to do it. There are courts at this point who are neither prepared to, nor do they need to, nor are they particularly interested in doing it. We’re not forcing CCMS on anybody, we’re talking about getting a coalition of the willing.”

In this proceeding Justice Bruiniers admits that he hasn’t really considered the warranty issue, and had not asked for an extension of the warranty as of July 22, 2011. Perhaps that position has changed, but I don’t see how that could have happened yet, since the next meeting of the council on this issue, according to Justice Bruiniers, is not scheduled until October 2011.

I understand judges have asked for a complete copy of the Deloitte contract and its amendments, including warranties.  Unfortunately, the AOC and Council have taken the position that CCMS courts are not entitled to a complete copy of the Deloitte contract and its amendments.  I am further informed that when courts have requested a copy, only portions have been released after substantial redactions have been made by the AOC.  Think about that: a contract is made between a public agency and a private contractor, with millions upon millions of dollars of public money changing hands, and the government agency refuses to disclose its terms in full. That’s remarkable. The AOC is buying a database management system, not secret weapons. Redaction of documents is very questionable.

Your email also said, “certain project opponents, directly or indirectly through legislative financial impediment, may have caused a delay in deployment in any court, which could jeopardize our collective ability to timely identify and ameliorate warranty issues relating to software”. Interestingly, I have learned the warranty period also ran out on V3 before being deployed. That warranty ended in November 2006, well before the birth of any organized CCMS opposition and well before the February 2011, State Auditor report which said, “the full cost of the project is likely to reach nearly $1.9 billion” and “this amount does not include costs that courts will incur to implement CCMS.”  In a corporate setting if the procurers of a new computer system let the warranty expire before it was ever put into service, causing the company to have to bear the expense of fixing bugs on its own, or if they allowed these kind of cost overruns, they would be fired.  In the AOC, they are rewarded.

Bear in mind that the shortfall in our local budget is resulting in furloughs of between 13 and 18 days for staff and outright closure of our courts for several days of the year.  Out of the approximately $8.7 million dollars we in Ventura have spent on CCMS, much of which went to Deloitte, one must wonder if we were paying for fixes which should have been covered by the warranty which was allowed to lapse, spending money we could now be using to mitigate the damage to our budget.  I don’t know, but I’d like to.

The context of all of this is that the AOC originally reported that CCMS would cost $260 million dollars and that deployment to the Superior Courts would be complete in 2008-09. The most recent report by the AOC to the legislature shows that $546 million has been spent and, as we know, CCMS V4 has not been deployed to any court. And in fact the February report of the State Auditor predicts on page one that “the full cost of the project is likely to reach nearly $1.9 billion” and “this amount does not include costs that courts will incur to implement CCMS.”

I recall that it was our branch leaders, including the Chairman of the new CCMS Executive Committee, who went to Sacramento and lobbied the legislature to stop the state audit. To now blame “project opponents” for delaying what has been a cost overrun and mismanaged program is unfair and devoid of any factual basis. I refer you to the words of the State Auditor on page 3 of her report:  “…the statewide case management project is at risk of not being able to obtain the funding needed for statewide deployment.” I was pleased the other day to be able to circulate to the judges of our court the news that the AOC was getting some money back from Deloitte.  You correctly identified it as a credit, not a refund.  I hope that it’s the result of more competent management of the project by the AOC, but it looks more like Deloitte is getting concerned that the golden goose may not survive this budgetary crisis so that it can lay more golden eggs.  Time will tell.

The truth is the Judicial Branch has had its budget cut for three years in a row and the Judicial Council has continued to spend money on CCMS. In those three years courts have laid off staff and furloughed employees.  The fact of the matter is that we do not actually need CCMS to get the public’s business done. If the project were suspended indefinitely or cancelled outright, no one other than those who have tied their fortunes to it would even notice, except for the improvement in the branch’s budget situation. Courthouses have been closed to the public and hours have been reduced for conducting business.  Those of us who really believe that keeping our courthouses open to the public should be the first priority are justified in seeking a “pause” in the project.

James Cloninger
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From:  Judge Susan Lopez Giss

Dear Mr. Overholt and Justice Bruiniers,
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I am writing to request information about the $16 million from Deloitte and your
public comments as to Deloitte crediting the Administrative Office of the Courts for
delays in the “long-awaited” CCMS project.
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The State Auditor found in her February review of CCMS that there were quality issues
detected during testing that caused a delay in CCMS.
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Please identify all of the quality issues that were detected during testing that contributed
to the 10 month delay.
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What has the AOC done, or directed to be done, to determine the costs resulting from the
delay caused by these quality issues?
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Who determined the costs resulting from the delay caused by each of the quality issues?
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Please identify who employed each of the persons who determined each of the
costs resulting from the delay at the time each person made such determination.
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Please set forth the costs attributable to each quality issue detected during the testing that
contributed, in whole or in part, to the 10 month delay.
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With respect to the statement that “the $16 million covers what the branch paid for
services and equipment that weren’t used during the delay,” please provide the following:
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A list of all of the services and equipment included in this reference;
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A list showing the costs associated with each specific service and equipment
included in this reference;
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With respect to the statement that the 10-month delay “was in large part due to some
internal issues Deloitte had with staffing and internal management,” please provide the
following:
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All of the written information Justice Bruiniers had that caused him to know that
the 10 month delay was in large part due to internal issues on the part of Deloitte.
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Specifically identify the “internal issues with staffing” that Justice Bruiniers
references.
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Specifically identify the “internal issues with management” that Justice Bruiniers
references.
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With respect to the statement that “Deloitte had to do some internal reorganizing to get
things back on track and they did that,” please provide the following:
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What did Deloitte have to get back on track as reported to the AOC and or
Judicial Council?
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When did the AOC realize that Deloitte had to get these things on track?
Did the AOC document this finding in writing?
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If so, please provide a copy of the writing documenting this finding.
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If the AOC did not document this finding in writing, please explain why this
finding was not documented.
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Was the authority to negotiate with Deloitte as to the delay caused by these quality issues
delegated to someone or some entity?
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If so, to whom?
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If so, was this authority in writing?
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If this authority was in writing, please provide a copy of the writing.
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If it was not in writing, please so state.
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Who approved the $16 million amount?
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What information was supplied to whoever approved the amount before the
approval to accept this amount was given?
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Has the Judicial Council approved the $16 million amount?
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Who approved that the amount would be a credit, rather than a check/ cash in the amount
of $16,000,000?
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What information was supplied to whoever approved that the amount would be a
credit rather than a check/ cash?
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Did the AOC ever demand that Deloitte write a check/cash?
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If so, please provide proof that this demand was made.
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If no demand for cash was made, please explain why not.
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Has the Judicial Council approved the amount being received in the form of a credit
rather than by check/cash?
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If so, please provide the information that was provided to the Judicial Council for
it to consider this matter.
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If the Judicial Council has not approved the amount being received in the form of
a credit, rather than by check/cash why not?
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What does the AOC mean when it states that Deloitte has agreed to credit the AOC $16
million for delays?
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Specifically, is there an outstanding invoice, or invoices, to which the “credit” is
to be applied? If so, please provide a copy of this invoice (s).
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Or, is this credit being applied to future services?
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If so, please identify with specificity the future services to which this
credit is being applied.
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Is the AOC going to receive this “credit” even if CCMS is not deployed?
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The AOC states that the “ $16 million credit will be used to support CCMS
deployment.” Does this mean that receipt of the “credit” is conditional on CCMS being
deployed?
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Who decided not to negotiate for cash payment being made to reimburse the
taxpayers for the delay that Justice Bruiniers stated was caused by Deloitte?
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Did the negotiations with respect to the “credit” include discussions regarding extending
the warranty?
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If so, please provide any documents that reflect that these discussions occurred.
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If the negotiations with respect to the “credit” to compensate for the delay caused
by the quality issues did not include discussions regarding extending the warranty, please
state the reasons why the subject of extending the warranty did not occur.
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Since the negotiations have been completed, I expect that I might receive your
response by October 24, 2011. Thank you for your attention to this matter.Judge Susan Lopez Giss
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Courthouse News Sues Ventura Court Clerk Over Press Access

By BILL GIRDNER

LOS ANGLES (CN) – Ventura’s court clerk was sued Thursday by Courthouse News Service over delays in press access to newly filed cases, a frequent source of news. The delays in Ventura stand in stark contrast to the same-day access to new lawsuits provided by federal courts and big state courts throughout the nation. “By denying Courthouse News timely access to newly-filed civil unlimited jurisdiction complaints, these records are as good as sealed for an appreciable time after filing, in violation of the rights secured to Courthouse News by the First and Fourteenth Amendments to the U.S. Constitution, federal common law, and the California Rules of Court,” said the complaint. The complaint said the news service has tried to work with the clerk, Michael Planet, to no avail.

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Courthouse News is represented by Rachel Matteo-Boehm, David Greene and Leila Knox out of the San Francisco office of Holme Roberts & Owen. The complaint noted that the press has access to only 6% of the new cases on the day they are filed in Ventura, only 14% can be seen the next day and review of fully 80% of the new cases is delayed between three days and a month. The superior court in Ventura is one of only four in the state to fully adopt a problem-plagued case management system sponsored by the bureaucracy that oversees California’s courts. As part of that system, Ventura’s clerk requires that a host of “processing” tasks be completed before a journalist can see the new cases. “Defendant simply does not have the authority to declare that newly filed complaints are off limits until he determines, exercising his unbridled discretion, that the press and public may see them,” said the memorandum of points and authorities that accompanied the news service’s complaint. “And even if he somehow had that authority, he would be required to exercise it consistent with the First Amendment right of access. But he has not even come close.” In contrast to Ventura, federal courts in Los Angeles, San Francisco, Sacramento and San Diego, and state courts such as those in Los Angeles, San Francisco, San Jose, Oakland, Contra Costa and Riverside give journalists access to review a large majority of cases on the same-day they are filed.

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The complaint against Ventura makes the point that the news is perishable and readers are less and less interested in events the more they recede into the past. So that by the time Ventura allows news reporters to look the cases over, they are old and stale news. Los Angeles Superior Court, which dwarfs every court in the nation in terms of the sheer volume of cases handled, gives journalists the chance to review nearly all the new cases that have come in that day by the end of the day, and a wide range of journalists use that excellent access to cover a potent source of news. The website for the plaintiff, Courthouse News, surpassed one million independent readers per month in September, and stories tied to newly filed actions have generated hundreds of thousands of readers. News sources as varied as CNN and the Los Angeles rock station KROQ cite the news service’s articles.

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“In recognition of the crucial role played by the media to inform interested persons about new court cases, it has been a longstanding tradition for courts to provide reporters who visit the court every day with access to that day’s new civil complaints at the end of the day on which they are filed,” said the complaint. “This same-day access ensures that interested members of the public learn about new cases while they are still newsworthy.”

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Court clerk Planet refused a request for prompt press access by referring to budget cutbacks, suggesting that access costs money. However, press access at its core involves little more than opening a door to let journalists see new filings. For example, after years of failed negotiations between the press and court officials in Riverside Superior Court, a new clerk was able to provide same-day access without spending extra money, primarily by adjusting work schedules. “At bottom, access is largely a matter of will,” said the plaintiff’s points and authorities. “As shown by the variety and effectiveness of the procedures for providing same-day access that have been implemented in so many courts, any individual clerk’s office can provide prompt access to newly filed complaints if it has the will to do so.”

Matteo-Boehm, representing the news service, argued that the open form of government that is fundamental to our nation would be undercut if court clerks could decide on their own when they thought a new filing should be public.

“The public’s right of access to court proceedings and records is a keystone of our democratic system,” she said.

“Under the First Amendment, clerks cannot bar public access to new complaints, even for limited times, unless sufficiently compelling interests justify withholding those complaints,” she said. “Prompt access to new complaints is of obvious concern to the news media, whose role it is to inform other interested members of the public of the new action and the factual and legal allegations while it is still newsworthy,” said Matteo-Boehm. “Prompt access is essential to the public’s ability to oversee the activities of an important branch of government while those activities are still current.”  The news service is asking a federal judge to find Planet’s policy invalid and order him to provide prompt press access to the court’s new matters.

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By MARIA DINZEO of Courthouse News
( A must read article. Mr. Calderon sees it like it is. This was no coincidence)
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And last but not least, a message from an anonymous sender who used our private message window.
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The NCSC holds its Court Technology Conference every two years – this year it’s in Long Beach CA and it is going on now. http://www.ctc2011.org/Attendees/Program-at-a-glance.aspxYesterday, the AOC (informal host of sorts) presented its vision for the future of our state courts.  Of course it wasn’t led by our chief justice, just another AOC bureaucrat. The sad thing is that the AOC hired a consultant (yes, another one) to help them create its vision and you’re going to laugh out loud or cry when you see the presentation.
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I continue to be in a state of disbelief that this level of baloney still exists.  Hire a consultant with money you don’t have to tell you what your vision should be and then present it to your peers as fact.  The applause was polite at best. The room knew the emperor had no clothes.
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