February 10, 2012
Now that Assembly Bill 1208 has passed the California Assembly, we ask that the judges of this state further consider the merits of this legislation. The time has come to end the effort to stop AB 1208, and to start a meaningful discussion among judges and legislators as to how best to implement this reform in a manner that avoids unintended consequences.
This issue must be resolved by legislation, because the problem was created by legislation enacted almost 15 years ago. We believe that angry attacks on the legislature by members of the Judicial Council and AOC staff, simply for supporting the bill, are counterproductive to a solution, and jeopardize judicial branch funding. Further, these attacks by Judicial Council members illustrate why many judges fear retaliation when taking a principled stand in opposition to branch spending decisions and policies. This underscores why we have not, and never will, publicly release our membership list.
We have heard many misconceptions about AB 1208, which is sponsored by the Alliance of California Judges and supported by hundreds of judges. We hope this letter helps dispel those misconceptions. We ask you to read the bill for yourself, and not rely upon representations from the AOC as to what the bill says, or does not say. We include a link to the bill. (Assembly Bill 1208 )
If you are a judge who reads this letter, and agrees with its conclusions, we ask you to not simply stand on the sideline. Join us. Contact a director or send us a responsive email to firstname.lastname@example.org requesting to be enrolled as a member and we will do so immediately. All we need is an email address to use for communications. We do our utmost to keep our members advised of matters of interest from the perspective of judges, not bureaucrats. The recipients of member emails are confidential, even to other recipients.
There is a defect in the trial court funding statutes that creates an inherent conflict. This statutory error needs to be corrected, and it can only be corrected by the Legislature. As long as this error is codified by statute, there will be inherent tension within the judiciary. AB 1208 corrects this problem.
The trial courts of this state are independent constitutional courts, and the trial judges of this state are independent constitutional officers, presiding in each county. (Art. 6, § 4.) Each court and each judge of that court is charged with the fundamental duty to provide state adjudicative services to citizens within that court’s county boundaries or persons coming before the court under principles of venue.
The problem is that all of the trial court operating funds necessary to perform this duty were delivered by the 1997 funding statutes to another entity that has a complimentary, but different constitutional mission– the Judicial Council. Current law does not require that the Judicial Council fully deliver all of the money which the Legislature has appropriated to the trial courts. The Judicial Council is not a governing body. The Judicial Council’s constitutional mandate is simply to “survey judicial business and make recommendations to the courts, make recommendations annually to the Governor and the Legislature, adopt rules for court administration, practice and procedure, not inconsistent with statute, and perform functions prescribed by statute.”
Because the voting judicial members of the Judicial Council are appointed, this puts all of the money necessary to operate the trial courts into the hands of judges who, while on the Judicial Council, are not performing the role of providing trial court services. Thus, the trial courts have no independent voice in how the spending priorities are established in the use of trial court operating funds. While the Constitution holds all judges equal in their office, this structure makes trial judges subservient to a another group of appointed favorites who, however well intended, and whatever their good faith, have no governing authority except that they control the money.
AB 1208 corrects this problem. AB 1208 amends current law to require that the Judicial Council or its designee allocate 100 percent of the funds appropriated for trial court operations by the Legislature, according to each court’s share of statewide operational funding. AB 1208 does not affect any separately appropriated funds within the Judicial Budget. It only addresses trial court operating funds.
AB 1208 is an essential component of budget discussions. So long as the AOC and Judicial Council are empowered to divert money intended by the Legislature to be used for trial court operations, any budget increases for the trial courts may prove to be illusory. Until AOC spending of trial court funds is under control as provided by AB 1208, it is unlikely that the Legislature will increase funding. Given the AOC’s dismal track record, it is simply unrealistic to expect the Legislature to continue writing blank checks.
The balance of this letter deals with common misconceptions about AB 1208.
Misconception: AB 1208 invades separation of powers.
Actuality: AB 1208 has nothing to do with the separation of powers. The statutes AB 1208 seeks to amend were, of course, themselves enacted by the legislature. AB 1208 does not diminish judges– it empowers judges. The Legislature already calls out the operating funds for the trial courts every year within the Judiciary budget. The Legislature already intends that this money is set aside for trial court operations. AB 1208 ensures that this money is fully delivered to the trial courts. It prevents the Judicial Council from taking trial court operating money, and using it for other purposes.
Misconception: AB 1208 will hurt access, because it will allow courts to divert money from programs such as Self Help Centers, or interpreters.
Actuality: AB 1208 does not affect any programs that are specifically and separately appropriated in the annual budget. Self Help Centers are separately appropriated by grant funds, and programs such as interpreters are separately appropriated. This misconception also presumes that trial judges will ignore their constitutional duty to provide access.
Misconception: AB 1208 will take away the Judicial Council’s ability to “run the branch.”
Actuality: The Judicial Council is not a governing body. AB 1208 does not take away the Judicial Council’s ability to supervise and manage the nearly $1.0 billion appropriated every year in the Judicial budget for the Judicial Council, the Supreme Court, Courts of Appeal, Court Construction, Court Maintenance, Judicial Compensation, Assigned Judges, Court interpreters, Habeas Corpus, or Grants. AB 1208 does not change the Judicial Council’s authority to supervise budgeting, establish uniform accounting practices, and pursue audits.
Misconception: AB 1208 will prevent important statewide initiatives like CCMS.
Actuality: AB 1208 does not prevent any project, including CCMS. Projects may still be funded and go forward provided that (1) they are funded other than with trial court operating funds, such as by the Improvement Fund, or the Modernization Fund, (2) separately appropriated by the Legislature, or (3) done with the consent of the trial courts. In fact, Government Code 68085 already contains language mandating that the AOC first obtain the consent of the participating courts before using funds from the Trial Court Trust Fund for statewide IT projects. However, the AOC and their General Counsel take the position that silence equals consent, and that no court actually utilizing the system has a right to object, even though Trust Fund money belongs to all courts, not just those actually utilizing some portion of CCMS. AB 1208 would make it clear that all courts in the state would have a voice in these decisions, and would end the non-democratic “rule by fiat” system now in place.
Misconception: AB 1208 will hurt small or rural courts and advantage large urban courts.
Actuality: AB 1208 does not change the funding allocation percentages that have been in place for the last 14 years. Every court will receive the same percentage of the overall budget that it has always received.
Misconception: AB 1208 will prevent the Judicial Council from providing additional funding on an emergency basis to courts that need it.
Actuality: AB 1208 does not affect the Improvement Fund or Modernization Fund, except as those funds are directed to the trial courts within the budget. The Improvement Fund remains available to assist courts in need. In fact, Government Code Section 77209(b) requires that at least ½ of 1% of the amount appropriated for trial court operations be set aside for the urgent needs of any court. AB 1208 would in no way amend or repeal this section.
Misconception: AB 1208 will undo trial court unification and return to 58 “fiefdoms.”
Actuality: AB 1208 does not affect unification. Unification has occurred as a matter of constitutional law in all 58 counties. The bill does not alter the Judicial Council’s authority to ensure uniform practices. The bill does not change the Judicial Council’s rule-making authority. The bill does not alter the uniform rules of practice and procedure.
AB 1208 empowers every trial court and every trial judge of this state to have a fair and independent voice in the administration of trial court operations and in setting the priorities for the use of the money that judges need to do their jobs. AB 1208 establishes a system that will be based upon consensus, not fiat.
Please contact us if you have any questions and we will respond. Please join us.
Very Truly Yours,
Hon. Andrew P. Banks (Orange)
Hon. E. Jeffrey Burke (San Luis Obispo)
Hon. Tia Fisher (Los Angeles)
Hon. Mark Forcum (San Mateo)
Hon. Maryanne Gilliard (Sacramento)
Hon. Daniel B. Goldstein (San Diego)
Hon. W. Kent Hamlin (Fresno)
Hon. W. Michael Hayes (Orange)
Hon. Thomas E. Hollenhorst (4th District Court of Appeal)
Hon. David R. Lampe (Kern)
Hon. Susan Lopez-Giss (Los Angeles)
Hon. Kevin McCormick (Sacramento)
Hon. John Somers (Kern)
Hon. Steve White (Sacramento)
Alliance of California Judges
- The Need to Treat the Legislature with Respect & commentary from JCW (judicialcouncilwatcher.wordpress.com)
- The Rosenberg rebuttal – By Judge Robert Dukes (judicialcouncilwatcher.wordpress.com)
- Tani’s Civics Lesson: The responsibility of the legislature (judicialcouncilwatcher.wordpress.com)
- Yes on AB1208 (Scoop San Diego.com)