LAO Report Misses The Mark: Funding Reform Needed

Posted on October 25, 2011

1


Good Morning California,

.

In this mornings edition of JCW we have an email being circulated by the Alliance of California Judges. In a letter from Judge Tia Fisher to Mr. Soderberg and Mr. Simbol of the legislative analysts offices, inquiries are made about the LAO’s recent report recommending branch centralization and AOC oversight. We were astonished by the political timing of this report and the recommendations being made.

In Mr. Soderberg we could see a consistent LAO supporter of the AOC making recommendations that in light of all that has been revealed about AOC and JC operations that were irresponsible.  The conclusion that they were irresponsible recommendations isn’t the fulcrum most others are pivoting on as much as the constitutionally mandated independence of the courts themselves. From what we’ve gathered, this report was issued in the waning days of Mr. Soderberg’s c0verage of judicial branch issues just as he is being transferred to prisons. His last opportunity to influence perhaps? Maybe the LAO is assigning someone who will make an independent, non-supportive analysis of the AOC’s significant issues and reverse these recommendations to reflect constitutionally independent courts.

While we don’t believe that “put the money in the bag” represents any person real or imagined or dead men walking, a couple of private message window entries indicate that the gentleman in the cartoon has a striking resemblance (in tone, facial looks and reasoning) to an AOC IT manager located on the third floor……………. Give us the name in thread and we will confirm it if you nail it.

______________________________________________________________________________

Dear Members and Others:

We include for you a letter from ACJ Director Judge Tia Fisher to the authors of the recent report issued by the Legislative Analyst’s Office.  As you probably know, the LAO report suggests an even great role for the AOC in the affairs of the local trial courts.  The Alliance of California Judges heartily endorses the arguments and observations of Judge Fisher.

We also include last Friday’s excellent Recorder article “Branch Critics Want Court Funding Rewrite”.

Thank you for your continued support.

Directors,
Alliance of California Judges

___________________________________

10/21/11Dear Mr. Soderborg and Mr. Simbol,

At the end of my work day as a trial court judge, I took the time to read the LAO report that you authored on the issue of Trial Court Realignment.  I am not writing on behalf of anyone other than myself as a Judge.  I have worked in the criminal justice system for over 25 years.  Of that time, I have served for over 14 years on the bench – a Commissioner for over nine years and Judge for over five.  I currently serve as a felony trial court judge in Pomona, California.
.
I am moved to write this email to address but one immediate concern with a recommendation that you set forth on page 16 “[W]e recommend that the Legislature take steps toward establishing a comprehensive performance assessment program for the trial courts, in order to allow the state to more efficiently manage its trial court system.”  You further recommend that “the Legislature specify in statute the specific performance measurements it believes are most important…After the Legislature adopts specific performance measurements for the trial court in statute, and after data on these measurements has been collected for at least two years (by the Judicial Council), we recommend that the Legislature establish a system for holding individual trial courts accountable for their performance relative to those standards.”
.
You cite the CourTools system, which you write “[the] AOC endorsed…years ago.”  You further note that past trial court realignment legislation envisioned “comprehensive performance measurement and assessment.”
.
It is the clear intent of your recommendation that the oversight for the legislatively mandated performance measures would be carried out by the staff arm of the Judicial Council, the AOC.
.
Your report specifically supports the CourTools program which measures scored assessments of employee satisfaction, accessibility, fairness, and equality of the trial courts, the resolution of cases in a timely manner, document retrieval, debt collection, and jury selection and the average cost of processing each type of case, among other measures. You note Utah and Massachusetts have implemented the “complete CourTools performance measurement program statewide” and also reference the more limited use of CourTools in Arizona and Minnesota.
.
First, I am unaware of the legislative branch in any state mandating specific court performance measures.  Utah’s Judicial Council adopted aspects of the CourTools program, but not all ten, contrary to your assertion.  The judicial branch, not the legislature, in other states has evaluated the program and made determinations as to which measurements to adopt.
.
The CourTools program includes ten specific areas of measurement.  I assume you are familiar with all. One of the measurements includes “Access and Fairness,” which is paramount for the judicial branch.  The way that the CourTools program defines and measures “access and fairness,” however, is based on five questions designed to be completed by all those who appear before a judicial officer on the day of the survey.  According to recent information that I have reviewed the questions are scaled 1 – 5 (strongly agree to strongly disagree).  They are:
.
The way my case was handled was fair.
.
The judge listened to my side of the story before he or she made a decision.
.
The judge had the information necessary to make good decisions about my case.
.
I was treated the same as the other side.
.
As I leave the court, I know what to do next about my case.
.
This access and fairness measure is referred to as “procedural justice.”  The NCSC in numerous research documents recognizes that procedural fairness is distinct from the due process considerations which are the foundation of our legal system.  Due process not “procedural fairness” compels us as judges to follow rules and procedures for ensuring fairness.  Since the rules and procedures related to due process may or may not be viewed by the public as evidence that they were being treated fairly, defining access and fairness by the “procedural justice” criteria included in CourTools is quite troubling indeed.  Procedural justice is essentially a consumer satisfaction measure related to perception.  It is dangerous.
.
Nancy Grace, the Fox TV reporter, is quite effective at creating consumer perception as but one example of the risks inherent in defining “access and justice” based on user perceptions.  .
What is more important than what the public thinks about the Casey Anthony trial is that criminal defendants have constitutionally guaranteed rights which many members of the public perceive as unfair.  Moreover, while I certainly make every effort to treat everyone who enters my court with courtesy and dignity, when I became a Judge, I took an oath to uphold the Constitution of the United States and the State of California. This is my moral imperative. An Appellate Court is the appropriate entity to determine how I perform in delivering access and fairness, not a CourTools public satisfaction survey.
.
I do not challenge the importance of how justice is perceived. My obligation, however, is to ensure due process, regardless of public perception and regardless of public opinion.  This is the very essence of the judicial branch and what makes it different from all others.
.
Your recommendation to legislatively enact performance measures that per the CourTools program also include the cost of case processing and processing time to resolution, while important aspects of evaluating case management within the judicial branch, these efficiency measures have no place as legislative enactments.  You cite “justice delayed is justice denied” as a primary basis for your recommendation.  This overly simplistic argument hardly justifies your proposal for a legislatively enacted mandate that trial courts accede to measures of efficiency as measures of justice, with compliance overseen by court administrators.  When courts handling death penalty litigation are measured on legislatively enacted cost analysis or length of time from filing to verdict, with AOC oversight, as implied in your proposal for efficiency legislation, our Constitution has been trampled.
.
I would like to know whether your recommendations have been discussed with any members of the AOC Office of Governmental Affairs or AOC staff or AOC consultants prior to your report.  It is frankly difficult for me to envision the LAO biting off such a significant legislative proposal that implicates obvious due process and separation of powers issues without running it by someone in the judicial branch who might have an interest in these issues.
.
Very truly yours,
.
Judge Tia Fisher
 ___________________________________

The Recorder

Branch Critics Want Court Funding Rewrite

Judge David Lampe argues that the Lockyer-Isenberg Trial Court Funding Act gave too much power to a Judicial Council ill-equipped to exercise it.

Cheryl Miller
2011-10-21 03:45:15 PM
SACRAMENTO — It was 1997. The long custody battle for California’s trial courts was over. After years of negotiations and failed attempts, the Legislature had finally shifted primary funding responsibility for the courts from the counties to the state.
.
Then-Chief Justice Ronald George hailed the passage of the Lockyer-Isenberg Trial Court Funding Act — named for two longtime judiciary allies in the Legislature — as one of the most significant judicial reforms of the 20th century. At the time, the bill’s co-author, Whittier Democratic Sen. Martha Escutia, insisted the legislation would end the politics and penny-pinching that enveloped courts under county control.
.
“This bill addresses the long-standing problem of funding stability and alleviates the courts from the funding crisis that exists as a result of split funding between the state and the counties,” Escutia wrote. The changes, she said, would usher in a new era of long-term planning, “fair allocation of resources among all courts,” and equal access to justice.
.
Fourteen years later, even the most ardent backers of Lockyer-Isenberg concede that those goals have not been met. Trial courts have been forced to ride the financial roller coaster of state budget cuts in recent years. The Legislature has stripped the judicial branch’s annual, automatic appropriation increase, making long-term planning anything but predictable. And historically uneven funding among courts has continued a system of haves and have-nots.
.
This less-than-envisioned reality comes at a time when the governor is preaching the need to move services “closer to the people.” Gov. Jerry Brown’s realignment policy has already shifted some criminal justice, mental health and protective services programs to the counties under the notion that they can serve the public more efficiently and at less taxpayer cost.
.
Are trial courts next?
.
Not in the strictest sense of realignment. For starters, the counties don’t want the courts back.
.
That leaves trial courts in a potentially vulnerable position in a Capitol where lawyers’ ranks are shrinking and term limits regularly oust legislators with institutional memories of how and why governance structures were created. Mix in historic-level budget cuts with unhappy judges and labor and the atmosphere is primed for big changes to Lockyer-Isenberg.
.
Moves are already afoot to rework trial court funding, most obviously in the form of Assembly Bill 1208. The bill’s sponsor, the Alliance of California Judges, says Lockyer-Isenberg inadvertently created a too powerful bureaucracy at the expense of independent trial courts. The 1997 legislation has to be amended, they say, to shift that power back to the courts.
.
But others say Lockyer-Isenberg is a vast improvement over the previous system and that its shortcomings are due primarily to the recession, not the statutory language itself. They want more time for Chief Justice Tani Cantil-Sakauye to make internal changes to the branch, not wholesale revisions to the trial court funding model.
.
The conflict could ultimately play out in January when AB 1208’s author, Assembly Majority Floor Leader Charles Calderon, D-Montebello, has said he will seek a full Assembly vote on his bill to meet a procedural deadline. .
.
Opponents quietly wonder whether Calderon, in his final year in office, will amend his bill to seek even more sweeping changes to Lockyer-Isenberg.

WHAT IT WAS LIKE

Former Shasta County Superior Court Judge Steven Jahr recalled the time he wanted his aging courtroom painted. There was no money in the court budget. So he and his bailiff donned some old clothes, marshaled an inmate work crew and slapped on the paint themselves.
.
Jahr, who served on the Shasta County bench from 1986 to 2009, said he tells the story not to brag or to complain but to explain the fiscal realities when counties controlled court purse strings. In the years just before Lockyer-Isenberg was enacted, trial courts around the state were threatening to close or severely curtail operations because of county funding woes.
.
“My own former court, for decades and decades, functioned in a poor tax-base county,” Jahr said. Since realignment, he said, “our court has experienced real improvement over what our budget was. Even though it has been cut and they are hurting … my court is better off.”
.
Jahr, who once chaired a Judicial Council budget committee, also credits state funding with standardizing operations across California’s courts. “For the first time the trial courts were put in the position of having to work together in the Judicial Council, which produced an extraordinary period of cross-pollination in practices,” he said.
.
Even if lawmakers decide that returning courts to counties is an idea worth pursuing, they’d have a fight on their hands.”There’s absolutely no interest in reopening that discussion,” said Elizabeth Howard Espinosa, a lobbyist with the California State Association of Counties. Lockyer-Isenberg capped the amount counties contribute to trial court funding at 1995 levels. Reconfiguring the new funding responsibilities would likely lead to a battle between counties and the state. “We have plenty on our plates with what’s already been realigned,” Espinosa said.
.
Trial court funding has increased since Lockyer-Isenberg, from $1.7 billion in the 1996-97 fiscal year to roughly $3 billion today, growth that exceeds inflation over the period. But not every court has flourished.

BRING YOUR OWN POST-ITS

San Joaquin County jurors can’t get coffee in the waiting room. There’s no bottled water in the courtrooms and no Post-It notes for employees to use. Private security guards have replaced sheriff’s deputies at some screening stations and civil courtrooms.
.
This month court leaders took more drastic action, closing the Tracy courthouse and all but one courtroom in Lodi. Small claims court will be dark most days of the week.
.
San Joaquin is one of the state’s handful of chronically underfunded courts, as calculated by a formula tied to caseload. Its problems stem from its days under county control. State court funding levels were set by matching county allocations to courts in the 1994-95 fiscal year. San Joaquin and other counties were suffering the effects of a recession that year, which effectively put their courts financially behind those in other counties that had fared better.
.
The Judicial Council did try to help San Joaquin and other underfunded courts by providing extra revenue for three years starting in 2006. The San Joaquin court took in roughly $4.5 million over that period. But the extra funding stopped in 2009 when the state axed the branch’s annual automatic budget increase known as the state appropriation limit, or SAL.
.
Looking through the prism of the current recession, Assistant Presiding Judge David Warner can’t say whether his court is better off now under Lockyer-Isenberg. But the law’s promise of more equal funding has proven elusive.
“There’s no question we came into the game underfunded,” Warner said. “What’s disappointing to me is that 13 years later we’re still the most underfunded court.”

WHERE TO PUT THE MONEY?

San Joaquin’s plight is proof positive that Lockyer-Isenberg needs fixing, said Kern County Superior Court Judge David Lampe, a director of the Alliance of California Judges. “The key problem that Lockyer-Isenberg did not solve was where to put the money,” Lampe said. Lampe and others contend that state funding was doomed to fail when legislators gave the Judicial Council authority over allocating money to the trial courts. The council, comprising full-time judges and attorneys, only meets six times a year and is ill-suited in its current format to handle regular governance duties, Lampe said. That leaves branch administrators, he said, to fill the power vacuum and to pitch branchwide programs that divert money from court operations.
.
Lockyer-Isenberg supporters’ contention that funding disparities will ease when the state budget improves “is a straw man argument,” Lampe said, because branch leaders have never redistributed funding “except for tiny little amounts.”
.
“They know that it would be a political nightmare if they tried to, say, take money from Los Angeles and give it to San Francisco,” he said. Lampe and other ACJ directors say the solution is found in AB 1208, which would curtail the Judicial Council’s discretion to spend money on branchwide initiatives, including the Court Case Management System, without the approval of a supermajority of trial courts. Bill supporters met with Senate leader Darrell Steinberg, D-Sacramento, earlier this month in an apparent attempt to ease opposition in the upper house. Steinberg and the Senate Judiciary Chairwoman, Noreen Evans, D-Santa Rosa, are both allies of Chief Justice Cantil-Sakauye and are widely seen as foils to the bill.

THE BEST APPROACH?

Yolo County Superior Court Presiding Judge David Rosenberg served as a county supervisor before becoming a judge. He remembers the annual budget scramble for money among competing county departments. The courts, he said, are better off under the current system.
.
“On balance, the best approach, if you truly believe we have a statewide court system, is to provide funding to the Judicial Council and to let the Judicial Council allocate the money as the governing body of the judiciary,” said Rosenberg, an advisory member of the Judicial Council. Rosenberg is among those judges who say the trial court funding system needs more time to develop, not a major overhaul. “It’s a work-in-progress,” he said. “For 150 years the trial court system operated through the counties … to suddenly shift that to the state was certainly an appropriate thing to do. But not everything is going to happen overnight.”
.
Since Lockyer-Isenberg, the judicial branch has taken control of more than 400 buildings and created a $5 billion construction and renovation program for them, Rosenberg noted. Court funding has increased. And while other problems, like disparity of funding, persist, the structure is in place to deal with them, he said. “Has [Lockyer-Isenberg] delivered on what it intended to do?” Rosenberg said. “Pretty much it has.”

.