ACJ Message + Judge White’s comments

Posted on August 30, 2012

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August 30, 2012

Dear Members and Others:

Sacramento Superior Court Judge Steve White will address the Judicial Council this afternoon shortly before 4:30, urging them to promptly adopt and implement the recommendations of the Strategic Evaluation Committee. You can access live streaming audio of the meeting through this link. Because we know many of you are not able to leave your calendars for that purpose, we have copied Judge White’s prepared remarks, which are set out below.

The Council is set to meet again tomorrow (8/31/12). The discussion and vote on the SEC report is tentatively scheduled for 9:00 to 11:00 a.m., and can also be accessed by using the link above. We will do our best to keep you informed on tomorrow’s events.

Directors, Alliance of California Judges

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Judge Steve White

To Judicial Council, 8-30-12

In the time since we last met, comment on the Strategic Evaluation Committee’s report and recommendations was invited. Almost a fourth ofCalifornia’s judges weighed in. By July 24 some 471 comments were filed with the council. Of these, 407 favored total or near total implementation of the SEC recommendations; 271 called for immediate implementation.

Many expressed concern that the Council was going to foot-drag, study, and restudy the recommendations to death, or otherwise defer to the AOC for guidance on where to go from here. Some of you seemed offended that anyone would predict inaction or rolling ruminations in place of leadership.

Let me take my few minutes to say why hundreds of judges are still skeptical that the Council will ever see the need and find the will to unhorse the AOC. For years on end the council as a body has exhibited no interest whatever in controlling the AOC. Examples of this failing abound. Among the most glaring are CCMS – see the State Auditor’s Report; and the court construction program – see the Pegasus Report. And, of course, read the S.E.C. report.

The judges are rightly concerned about the lengthy saga of the AOC mismanaging major projects and treating the courts as subordinate dependencies. But the fundamental blame here does not fall on the AOC. It falls squarely on the council.

A perfect example of this point was the AOC’s Office of Governmental Affairs’ surreptitious attempt to insert into a budget trailer bill an amendment to eliminate local control of the trial courts and move that authority to the council — which means, essentially, the AOC. If it weren’t for two judges getting word of this from Capitol sources, this toxic language could easily have become law because, as its proponents well knew, budget trailer bill language often flies under the radar. This sneak play was either authorized or it was not. While a member or members of the council may have been in the loop, the council itself was not. If the council did not authorize this duplicity, then it was perpetrated by one or more rogue employees at or near the top of the AOC.

A council actually committed to judicial independence would have gotten to the bottom of this and, among other actions, terminated the at-will employees who were responsible. Instead, the council did nothing. At least two of the apparent perpetrators (as recently revealed in a news report) received pay raises since this attempt to upend the trial courts. This is damning evidence that the Judicial Council governance model is broken. Here’s another example.

How can the council, in a collapsed economy in which a week doesn’t pass without courtrooms closing and court employees being laid off, conceivably justify continued pay raises for AOC employees? Surely these must be denied until we stop triaging public access to justice.

For the AOC spokesperson to characterize these raises as “merit salary adjustments” and nothing different than what county governments and trial courts are doing is wrong on two counts. First, it’s a non-sequitur. Just because some counties or some courts gave such raises has nothing whatever to do with the AOC. Second, it’s not true. These are raises. Two years ago I ended such raises in the Sacramento Superior Court because our highest priority was keeping the courts open. Many – and I think most – courts have done the same. But not the AOC, which continues giving raises and has more scheduled for 2013. The AOC’shighest priority is not keeping courts open.

It’s time for a reality check. It’s time for the council to actually superintend the AOC instead of the other way around. A judicially elected council would not have tolerated these disconnects between the AOC pursuing its own vision and the courts trying to stay open and do justice. The SEC report identifies many of the AOC’s failings but the foundation for those failings is a council not elected by the courts and not representative of the courts. Because these failings are the product of a flawed governance model, it’s the council itself that must be reformed. It must be democratized. Nothing more. Nothing less. Nothing else.

Since court unification the current Judicial Council governance model has shown repeatedly it cannot do the job. Perhaps because its agenda — guided over the years by the council chair, who also appoints three-fourths of the council members — is more aligned with the AOC than with the Judiciary.

Or perhaps the council was just adroitly played by AOC functionaries particularly adept at guiding council members. That this continued for more than a decade would seem improbable. But maybe, as was said of President Coolidge, “Once bamboozled, impossible to unbamboozle.” Or maybe the council members simply wanted to remain on the council. Those occasional members who had the temerity to disagree with the AOC’s agenda soon became former council members.

For once, please simply listen to the judges of this state, and actually hear what they are saying. Do not presume to second-guess their public comments, or dismiss the hundreds calling for full and immediate implementation of the SEC recommendations. The judgment of the E and P committee is no substitute for the collective wisdom of several hundred judges demanding action. Do not insult them yet again by embarking on yet another study of the study, as adoption of the E and P’s recommendations will require.

Simply do the right thing – vote to fully implement each and every recommendation of the Chief Justice’s committee. We were promised the report would be “your bible”. Do not send that bible out for further study.