A New ACJ President takes the helm ; JC Formalizes AOC Information Roadblocks

Posted on December 17, 2012

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We haven’t heard much out of the Alliance of California Judges but by this note put out to their members, it appears they’ve been really busy.  Please note the attachments at the bottom of their letter.

From all of us at Judicial Council Watcher to you, your family and your friends, we want to wish you a warm and joyful holiday season. As you probably might have guessed, the end of the world doesn’t happen in four days but the end of the Mayan calendar does. The turn of the year will also bring with it the year of reckoning. It might not be readily apparent but there is some uncommon resolve going on out there in the trial courts and the legislature and it’s all good. Keep up the fine work!

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December 17, 2012
Dear Members:
The Board of Directors of the Alliance of California Judges wishes all of you a joyous upcoming holiday season. We hope it finds all of you and yours in good health and offers each of you a time for reflection and also a brief respite from the day to day stress and concerns of managing your courts in the very difficult financial climate we now face.Your Board has also spent a great deal of time considering the upcoming calendar and fiscal year. We look forward to continuing to develop your Alliance into a long-term organization that independently serves the judges of this state, with an emphasis on local control and management of the courts. We plan to take a major role in budget discussions with the Legislature in the upcoming session.
The Alliance has now established a great deal of credibility within the Legislative and Executive branches, and we plan to build upon that opportunity.Like everyone concerned with judicial administration, we hope to advocate for increased funding for our courts. Unfortunately, the state budget remains deeply pressured. Revenues are not meeting expectations. Increased funding for the judiciary is unlikely without major reforms being embraced and undertaken.Central management of our court system through the Administrative Office of the Courts, overseen by the Judicial Council, has quite clearly been a failure. It is not lost on the Legislature, the Governor’s Office, and the Department of Finance that an unapologetic AOC has been the architect of a monumental waste of public funds. For this reason, the Alliance has come to be. The history of these failures and the reasons for the Alliance are succinctly laid out in an article by Judge David Lampe, published this month in California Litigation magazine. We attach a pdf version of that article and recommend it to all of you and your fellow judges.The Alliance is again looking closely at the funding structure of our courts and we hope to propose the outlines of budget solutions shortly after the first of the year.

The Alliance has always desired to be given a meaningful voice within the existing governance structure of the Judiciary. We have made many overtures to be included. Unfortunately, the current structure allows no room for alternate viewpoints. Recently Judge Steve White, an Alliance director, wrote the Chief Justice in the hope that our organization might be considered for an advisory position on the Judicial Council. We attach a copy of Judge White’s letter and the response, which “speak for themselves.”

Because there seems to be “no room at the Inn” for our views within existing judicial leadership, we will move forward independently with the Legislative and Executive branches next year to have our views considered. Our experience in achieving last year’s budget trailer bill enacting the major financial provisions of AB 1208 shows that we will be heard.

The Alliance has also prepared a comment to the recent judicial ethics opinion that proposes rules restricting the behavior of judges seeking the assistance of attorneys in opposing budget cuts negatively affecting their courts. The Alliance believes that the draft opinion is (1) overly broad, going beyond the questions presented; (2) confusing and contradictory in the guidance given to judges about what actions are and are not ethically permissible; and (3) unduly restrictive, preventing judges from acting and speaking in ways that are entirely ethical and in the best interest of their respective courts. We will share this opinion with you in a few days once it has been submitted.

The Alliance board has also met to install next year’s officers. Judge Steve White of Sacramento has been elected President. Judge Tia Fisher of Los Angeles will serve as Secretary and Judge Kent Hamlin of Fresno will be Treasurer. Outgoing President, Judge David Lampe, will serve as an “executive” director, to continue to oversee the development of the organization and coordinate its activities. We cannot overstate the work that Judge Lampe has done on behalf of the Alliance of California Judges and the judges of this state over the past three years. He has been an unrelenting voice for judicial independence, fiscal responsibility, and local control of our courts. But for his efforts, the reforms now embodied in Government Code section 68085 would never have been enacted, for they were bitterly opposed by branch leadership, past and present. Judge Lampe, thank you for your hard work, clear vision, and unfailing honesty in tackling the problems that beset us.

On another note, we have previously informed you that legitimate requests for information by the Alliance receive “special” treatment by AOC central office staff and Council members. Further evidence of this came to light at last Friday’s council meeting where new procedures and rules will govern how requests from judges will be handled. We attach an article from Maria Dinzeo of the Courthouse News that details this policy change. We also link for your information the actual Byzantine rule that will permit our branch leaders to continue their “special” treatment of Alliance and, presumably, all judges’ information requests. http://www.courts.ca.gov/documents/jc-20121214-itemX.pdf It appears that central staff’s repeated actions of stonewalling and refusing to release public information, as detailed by the State Auditor and the Chief Justice’s Strategic Evaluation Committee, has now been blessed by the Council.

Finally, we ask you to Save the Date! The Alliance will be conducting its first ever statewide get together for judges at an educational conference beginning Friday, March 1, 2013, and concluding on Sunday, March 3, 2013, at the Sheraton in Palo Alto. Travel and accommodations will be provided for the first 120 enrolling participants. Enrollment is open to all judges of the state, but priority will be given to enrolled Alliance members. A portion of the program will be in conjunction with George Mason University on Law and Economics. We plan a balanced presentation, including presenters and keynote speakers who will also discuss the new Code of Judicial Ethics. We hope Stanford Law School Dean Elizabeth Magill will kick off our educational conference on Saturday morning with a welcome to the judges and comments on the state of law school education in 2013. By that time, we hope to also have a well-versed panel to present an overview of the budget issues the courts will likely be facing for the 2013- 2014 budget year.

The next year will be a momentous one in the life of the California court system. The Alliance of California Judges will continue to advocate for the most fundamental principles for access to justice: open courtrooms, sufficient staff, and local administration by the judges who are directly responsible to their constituents to provide the core function of the courts–the adjudication of cases and controversies.

Thank you for your continued support.

Directors, Alliance of California Judges

CA Judicial Council Lays Out New Terms for Public Info Requests
By MARIA DINZEO
SAN FRANCISCO (CN) – California’s Judicial Council on Friday changed its policy on information requests, in response to growing interest from judges in the judiciary’s financial affairs .

The council will now play a larger part in dealing with requests pertaining to council policy, and staff for the Administrative Office of the Courts must defer to council members on how to respond. The battle over information plays out as part of a larger confrontation between a powerful court bureaucracy and trial court judges critical of the policy and spending choices made by that bureaucracy. “It wasn’t until we were realizing the hundreds of hours that were being expended in answering the types of requests that we were seeing, that were, honestly, some people have a lot of time on their hands,” said Judge Mary Ann O’Malley.

Skeptical of the new policy, Judge David Lampe called it “an example of unwarranted bureaucratic complexity.”  Retired Judge Charles Horan from Los Angeles, who fought a lengthy information battle with the court bureaucracy earlier this year said rules on information requests were being subverted to withhold information. He said he would have to wait and see on Friday’s policy changes. “Any system is only as effective as the good faith of the people running it,” said Horan. “That’s what it will boil down to.”

The language adopted by the council on Friday consists of guidelines on how the administrative office staff should apply the council’s Rule of Court 10.500 titled “Open Access to Public Information.” The preamble to that rule states, “The intent is to clarify and expand the public’s right of access to judicial administrative records and must be broadly construed to further the public’s right of access.” The guidelines put in place Friday will send requests for information under Rule 10.500 along different paths, primarily based on who is asking.
If a question comes from the governor or a legislator, it will go to the court lobbyists. If a question comes from the press and has to do with policy-making, such as why the director of the court bureaucracy sits on the Judicial Council as a non-voting member, it will by answered by the press liaison. When faced with such a question from a judge, the new guidelines say, “Refer to Director of Court Operations, Special Services Office, who will consult with Chief’s appointee(s) to determine whether request is within the regular scope of judicial business. If yes, appropriate staff will be notified and should respond. If no, refer to Chief’s appointee.”  If a member of the public asks a question concerning policy, such as why is the administrative office employs attorneys in China, and if that questions “appears to present a legitimate issue or be appropriate for response,” the guidelines say, “refer to direct of Court Operations, Special Services Office, who will consult with Chief’s appointees(s) to determine whether to respond.” “Otherwise,” the guideline continues, “a response is not necessary.”

Most of the requests for information over the last year came from the Alliance of California Judges, a reform group that has pushed for greater oversight of the bureaucratic agency. Judge Lampe of Kern County is a director of the Alliance and retired Judge Horan is a member. The Alliance judges point to the language of Rule 10.500 that went into effect in January 2010, saying the rule should be broadly interpreted to give all citizens access to public information. At Friday’s meeting of the Judicial Council, Justice Harry Hull argued that the staff was flummoxed by many of the questions, such as how many days former judges Roger Warren and Leonard Edwards worked as “scholars-in-residence” for the judicial branch. At first glance, the question of how many days a particular person worked for a public agency might not seem overwhelming. The question concerned a program that paid substantial salaries to “scholars,” whose precise work was unclear. It was attacked by the Alliance judges as a waste of money when trial courts were cutting their operations to the bone in the face of the governor’s budget cuts.

“Last spring, it became known to some of us on the Council that the AOC did not really know how to handle some of the requests that have been coming to them and how to respond to certain requests,” Hull said during the council meeting. He said the questions asked staff to justify council and administrative staff policies, so Hull then took on the job of answering them.

An example of a question that was referred to Justice Hull was one from retired Judge Horan who asked, “I have been told the AOC will reimburse appellate justices 300 to attend the CJA conference this year. Is that true.”  “Is AOC also reimbursing for judges,” asked Horan. He also wanted to know who made the decision.

The conference has been a forum for debate on policies of the court bureaucracy and the council, and those who attend would influence the tenor and outcome of those sometimes heated discussions. Horan’s inquiry ultimately sought to find out if some of those attending the conference were favored with travel expenses.

His questions, most calling for yes or no replies, were not answered. During Friday’s council session, Judge O’Malley of Contra Costa County, a council member who worked on the original information access Rule 10.500, defended the new guidelines. “These requests when posted to staff were really difficult to determine,” she said. “For instance, and this is coming from another judicial officer, it really puts staff in a very awkward position. They did try to deal with it for months and months and months. It was amazing what it was they were asking for; some were possibly legitimate requests and some I could not see any logic whatsoever in the request. It got to the point of absurdity. It really did.”

Chad Finke, Director of the AOC’s Court Programs and Services Division, said, “As Justice Hull pointed out at some point or other, not only did the amount of time become an issue, but the issue came up — is this really appropriate for staff to be responding to these types of questions?”  The council will revisit the new method in six months, as suggested by Judge Ira Kaufman of Plumas County, to determine whether judges are getting the information they need.

Reacting to the new guidelines, Lampe suggested the council should have instead kept it simple. “The council should simply adopt a policy that says, ‘all staff of the AOC shall respond to requests for information, not privileged, from any constitutional judicial officer as soon as can be reasonably accomplished,” said Lampe, “and to keep the requesting judge informed of the process of gathering information if there will be a delay.’ ” Horan also said the process did not need to be complicated. “This could be worked out if they behave reasonably and really try to be transparent. This was never an insurmountable problem.” Horan said that since its adoption, the council has interpreted Rule 10.500 “very narrowly with a view toward withholding information.” He added, “They’ve not been interpreting that rule the way it was meant.”

He accepted the AOC’s complaint about some questions being beyond its purview, such as “questions as to the Judicial Council’s mental processes,” but noted there were many requests that staff could have answered and didn’t, particularly if they originated with the Alliance.

Horan said the attitude of council and AOC leadership, including director Judge Steven Jahr, will determine the policy’s success. “It’s up to them to make it happen,” he said. “We’re not hard to satisfy. If the Chief Justice and Judge Steve Jahr make it clear that the duty of the Judicial Council and the AOC is to fully cooperate with any lawful request for information, it will get done. It starts at the top.”

ACJ Attachments:

(Note that the descriptions of these letters were provided by JCW and not the ACJ)

SWhite.103012 Blow-off letter to Judge Steve White from Chief Justice Cantil-Sakauye

DOC008 Letter from the Alliance of California Judges signed by Judge Steve White to Chief Justice Cantil Sakauye – a must read.

20121210200947 Preserving Justice for the Citizens of California, by Judge David Lampe

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Program note. This is your only warning. The conspirators in the back room are planning to launch an April Fools Joke on you in 2013. You’ve been warned.

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Checking with Michael Paul – Regarding the new policy regarding the release of public information, Mr. Paul has received nothing from the Administrative Office of the Courts and it has been 12 calendar days since his request. Surely a 2.3 billion dollar state contract is available for public scrutiny.

From: Michael Paul <pragmaticengineer AT  gmail dot com*> (*change requested by the author after consented publication)
Date: Wed, Dec 5, 2012 at 4:49 AM
Subject: Project agreement for Long Beach
To: Pubinfo <pubinfo@jud.ca.gov>

Hello Pubinfo,

This is a three part request.

1. I would like to get a copy of the PROJECT AGREEMENT FOR THE DESIGN, CONSTRUCTION, FINANCING, OPERATION, MAINTENANCE AND MANAGEMENT OF THE NEW LONG BEACH COURT BUILDING between THE JUDICIAL COUNCIL OF CALIFORNIA, ADMINISTRATIVE OFFICE OF THE COURTS and LONG BEACH JUDICIAL PARTNERS LLC Dated December 20, 2010 and any amendments to this agreement.
.
It would be nice and probably save you processing numerous similar requests for you to scan this document and post it on the courts.ca.gov website. I’ll be happy to have a link to it circulated to concerned parties in the courts and the media.
.
2. Additionally, can you provide public records that indicated that the judicial council actually considered, voted and approved this project and its price tag because I can’t seem to find any record of judicial council approval of this two billion dollar expenditure.
 
3.  On page 11 of the enclosed link, it denotes that a mitigating factor to the risk of legislative non-appropriation is that the Judicial Council and the AOC would submit a budget change proposal for an additional line item appropriation to fund the annual service fee. Furthermore it notes that if the JC\AOC did not secure the line item appropriation to pay for the annual service fee that the project company has the right to terminate the AOC’s lease and take possession of this building for the next 50 years. http://www.cmaasc.org/pdfs/092712_verticallbcourthouse.pdf
 
The question related to item 3 is this: Did the AOC secure a line-item appropriation for the long beach courthouse from the state legislature a) prior to the commencement of this project or b) any time since the commencement of this project?
 
thanks,
 
MP