Discussion on Private Committees & Court Case Mangement Systems

Posted on February 26, 2013

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February 25, 2013

Dear Members and Others,

We attach articles by Cheryl Miller of the Recorder and Maria Dinzeo of the Courthouse News.

Cheryl Miller’s article details the secrecy surrounding many important decisions made by branch leaders. She points out the obvious disconnect between the courts’ consistent enforcement of the constitutional mandate favoring disclosure and the continued lack of access to Judicial Council decision making.

In that regard, several months ago the Alliance requested that Justice Douglas Miller, Chairman of the powerful Judicial Council Rules Committee, open up the proceedings wherein recommendations from the Chief Justice’s Strategic Evaluation Committee were to be discussed and voted on. Of course our request was denied and what we believed would happen has occurred. While the Council appeared to “adopt” all recommendations, the report’s recommendations are on a slow track to nowhere. Because of this cloak of secrecy surrounding Justice Miller’s committee we are left to speculate as to what did or did not occur.

Maria Dinzeo’s article highlights the wisdom of allowing our local court experts to come up with a common sense and cost effective solution to the need for case management computer programs. Rather than reinventing the wheel, these competent IT professionals have identified three vendors who can provide courts with off-the-shelf computer programs that best fit their needs.

Meanwhile the Judicial Council has gathered many of the same folks involved in the disastrous half-billion dollar CCMS project to make recommendations on court technology. Rest assured that the Alliance and the Legislature will carefully monitor Council involvement in IT projects and insist that no more precious court dollars be wasted on unreliable, untested and expensive technology that the courts do not want or need.

Lastly, for those of you attending this coming weekend’s educational conference in Palo Alto, we look forward to seeing you and hearing what your thoughts are on the issues affecting our branch. We also wish to thank those of you who have voluntarily contributed to the Alliance. We are gratified to inform you that we have sufficient funding to lease office space and pay for clerical support for this year’s legislative session.

Directors,
Alliance of California Judges

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The Recorder

Happy to champion openness for others, the third branch seems less eager to reveal its inner workings.

Cheryl Miller

2013-02-22 03:38:55 PM

“The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”
— California Constitution, Article 1, §3 (b)(1)

For decades, California’s courts have upheld, even championed, laws granting the public open access to government meetings.

They’ve enforced strict boundaries on what elected officials can discuss in closed session, chastising one city for using open meeting exemptions “as a shield against public disclosure of its consideration of important public policy issues.” Shapiro v. City Council of San Diego, 96 Cal.App.4th 9904 (2002).

They’ve ordered agencies to provide the public with accurate agenda descriptions of what they plan to do in session — and then stick to them. Carlson v. Paradise Unified School District, 18 Cal.App.3d 196 (1979).

And they’ve deemed public access to government information a check “against the arbitrary exercise of official power and secrecy in the political process.” CBS v. Block, 42 Cal.3d 646 (1979).

But when it comes to running their own governmental house, judicial leaders have taken a more do-as-I-say, not-as-I-do approach.

The Judicial Council meets regularly in closed session, each time citing an expansive Rule of Court that gives the chief justice broad authority to shut out the public. Sometimes a vague reason is given for the closed session — “privileged attorney-client discussions,” for example. Many times, however, the meeting is simply listed as a “nonbusiness meeting” and closed. There guidelines for when a meeting can be closed are vague and rarely does the council report any action taken in such meetings.

While the council circulates agendas prior to its meetings, the five so-called internal committees that perform much of the planning and policy shaping for the branch do not. Brief minutes of these committees’ meetings are usually included in the Judicial Council agendas, but often not until months after the gatherings occurred.

The council’s Dec. 14, 2012, information packet, for example, included minutes for an Aug. 12, 2012, meeting of the Policy Coordination and Liaison Committee. The summary noted that the committee had opposed a pending bill dealing with bail procedures for felony suspects. But it offered no record of committee members’ votes and no reasoning behind the committee’s stance. And by the time a report of the committee’s action was made publicly available, the bill had already died in the Legislature more than two months earlier.

The workings of the council’s more than three dozen advisory panels, task forces, working groups and subcommittees are even more secretive. No agendas or minutes for their meetings are posted publicly. Instead, the administrative director of the courts offers in his regular reports to the council two- or three-sentence reviews of their recent gatherings.

Chief Justice Tani Cantil-Sakauye said the council hasn’t considered whether the branch should be doing so much work in private because “no one’s really asked.”

Opening committee meetings “is probably a good idea to consider,” so long as it doesn’t “chill” discussions or generate new costs, she said.

“Maybe it would serve to educate people about what the Judicial Council does and how the Administrative Office of the Courts is different from the Judicial Council,” Cantil-Sakauye added. But she and other branch leaders still contend that the public is missing nothing in these shuttered committee meetings since the Judicial Council meets openly to make the final decisions on court rules and branch policies.

“That’s the same argument you hear with committees under the Brown Act,” said Mary Duffy Carolan, a Davis Wright Tremaine partner who has represented numerous news organizations. The Brown Act is the California statute governing access to legislative-body meetings.

“A lot of deliberations up to decision making happen in committees,” Carolan said. “It’s important for the public to see that in process so they can be fully informed at the time a decision is actually made.”

No one has accused any of the committees of wrongdoing. In fact, Third District Court of Appeal Justice Harry Hull Jr. said he’s never even been approached about opening his Rules and Projects Committee meetings to the public. (Rule of Court 10.10 says internal committee meetings are closed to the public unless a chairperson decides to open them.)

“For most people who are not involved in these issues, they’d probably be bored to tears” by these committee hearings, Hull said.

But the branch does have a recent history of being hurt politically and financially by not being more open about its work. In a February 2011 report, state auditor Elaine Howle specifically cited a lack of transparency in planning and decision making as a prime reason projected costs for the now-defunct Court Case Management System skyrocketed to an untenable $1.9 billion.

Last November the Legislative Analyst’s Office also concluded that the branch may have overpaid by as much as $160 million for a new Long Beach courthouse under a controversial 2010 public-private partnership deal crafted largely in private by judiciary officials, the governor’s office and a handful of lawmakers.

Cantil-Sakauye has made the call for greater branch transparency a main theme of her two-year tenure as leader of California’s judiciary. She and the council did end her predecessor’s practice of holding closed-door “educational” meetings of the Judicial Council the day before the council’s public gatherings.

“The council doesn’t have closed sessions talking about issues coming before it, talking about how we’re going to vote,” said Fourth District Justice Douglas Miller, who chairs the Executive and Planning Committee, which sets the council agenda.”The council has substantially reduced the number of closed sessions over the last two years,” Miller said.

But members still met privately for almost 14 hours through various meetings in 2012, according to council agendas and minutes. And even some participants privately question why.

One former Judicial Council member recalled closed-door discussions about personnel issues, a subject that open-meeting laws affecting legislative agencies typically allow to be considered in private. But some topics, the member said, focused on “nonpersonnel but sensitive” issues including “political strategy” that didn’t seem to warrant the hush-hush treatment.

Rule of Court 10.6 allows the chief justice to close a meeting for a host of reasons, from discussion of litigation and land deals to consideration of “legislative negotiations.”

A past advisory committee member, who asked for anonymity because he has proposals that may go before the council, said he, too, was perplexed as to why the public would be shut out of his panel’s meetings. Debate could be intense at times, he said, but probably wouldn’t have been affected by an audience.

“I don’t think there’s anything secret or confidential going on,” he said. “They were just policy issues.”

But the sheer breadth of policy issues studied and debated by those advisory committees and task forces is enormous. They have considered changes to the death penalty appeals process, testing rules for court interpreters, budget allocations for trial courts and construction priorities — mostly in private.

Some committees have occasionally opened their doors. Panels dealing with family law, courthouse construction, conservatorships and foster care have held public meetings in recent years. But they’re the exception to the rule.

No Rule of Court specifically authorizes advisory committees to meet in closed session. They do so because that’s the way it’s always been done — and because there’s no rule that says they can’t.

“As far as authority for conducting advisory committee meetings is concerned, there is no prohibition in law for advisory committees to the Judicial Council to conduct meetings which are closed to the public,” said Steven Jahr, the administrative director of the courts.

But that’s exactly the wrong conclusion to draw under California’s Constitution, said Joseph “Terry” Francke, general counsel to Californians Aware, an advocate of improved public forum laws. Voters in 2004 overwhelmingly approved Proposition 59, the so-called Sunshine Amendment, which expresses a broad public right to government records and meetings.

No definitive legal case has yet determined that Prop 59 applies specifically to the judicial branch. But First Amendment groups insist that it does.

“The courts are under a presumptive assumption of access, not only in their judicial proceedings but in their administrative instruments as well,” Francke said.

Francke conceded that such committee meetings may be tedious or even irrelevant to people who aren’t gadflies or self-proclaimed watchdogs.

“The question is, though, even if there are a confined number of interested audience members, shouldn’t that be enough to conduct the session openly?” he said.

Hull said his committee has had some preliminary discussions about inviting public comment on issues earlier in the traditional rule-vetting process. Typically, advisory groups pass their recommendations to the rules committee, which can send them out for public review before forwarding them to the Judicial Council. But even if the advisory groups take public input earlier, there’s currently no interest in opening their proceedings, he said.

The Judicial Council is scheduled to meet Monday. One hour has been set aside for a closed “nonbusiness educational meeting” at 10 a.m.

Copyright 2013. ALM Media Properties, LLC. All rights reserved.

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Courthouse News Service
2/22/2013
Three Software Firms Chosen for Lucrative Business in CA Courts

By MARIA DINZEO

(CN) – Rising out of the ashes of a failed IT system for California’s trial courts, three private companies have been chosen as premier providers in the lucrative business of selling software to the far-flung courts of the biggest state in the nation. The move to private vendors comes in the aftermath of the crash-and-burn of a half-billion-dollar, publically funded software project driven by the Administrative Office of the Courts, the central bureaucracy that sits above the trial courts. Called the Court Case Management System, the software was abandoned last year after a host of courts rejected it as cumbersome, labor intensive and crash-prone. In addition, state legislators were highly critical of the project’s daily drain of hundreds of thousands of dollars from public coffers.

Sacramento Superior Court — one of the few courts that installed CCMS only to became a leading critic of the software — announced last week that three private companies have qualified to sell what is likely to be many millions of dollars-worth of case management programming to California’s 58 trial courts. Sacramento and Santa Clara Superior Court have taken the lead within a group of IT workers from 13 trial courts called the California Information Technology Managers Forum. The courts participating in forum are from Orange, Humboldt, Alameda, Mariposa, Riverside, Fresno, Kings, Kern, Merced, San Diego and San Mateo counties, according to a list provided by the Administrative Office of the Courts. They vetted and OK’d Texas-based Tyler Technologies, New Mexico-based Justice Systems Inc. and Thomson Reuters’ LT Court Tech. As an example of the sums involved, San Luis Obispo Superior Court, a relatively small court in California, recently agreed to pay Tyler $3.1 million to buy the Odyssey case management system that allows for electronic filing. Tyler was chosen despite pricing its software substantially higher than the competing bidders.

Tyler has been winning a big number of contracts in the last couple years with courts in Texas, Indiana, Nevada and now California. Robert Oyung, the Chief Information Officer for Santa Clara, said the vetting of the software vendors was a collaborative effort by the technology forum members. He said all courts were invited to review the top six proposers, but eight courts were responsible for rating, or scoring, the applicants. Sacramento Judge Trena Burger-Plavan noted that AOC staff also jumped into the scoring. “In terms of the scoring,” said the judge, “I know that the AOC participated and all courts were able to provide feedback on the vendor proposals and demonstrations that were presented.”

She said the forum’s evaluators were anonymous. “Each submitted votes after receiving input from participants throughout all the courts and the AOC.” Judge James Herman of Santa Barbara, the former chair of the CCMS internal committee on the governing Judicial Council and a consistent promoter of CCMS, is now the the chair of the Judicial Council’s technology committee and also chair of the committee’s technology task force. He said in an interview that the individual trial courts don’t have to go with any of the three chosen ones. “This is an RFP that all courts can use, are not required to use, but can save the expense of building your own RFP that meets the California contract code, which is very labor intensive for a small court. Smaller courts that don’t have the legal or technology expertise to develop their own RFP can look to this as a template,” said Herman.

As with the old CCMS system, courts will still be able to choose whether to host their data locally or at a distant location. During the failed effort by central administrators to establish a uniform, statewide software, some courts became distrustful of storing their data on a remote site, as the central administrators were urging. Tech staff in San Diego, Orange and Santa Barbara all expressed reservations on hosting court information away from the court.

“Most courts might like offsite so they don’t have to buy the hardware,” said Herman. “So offsite hosting might not be a bad idea. A group of courts could also work in consortia and share a server.” Herman stressed the need for buying new software and the need to do that quickly.

“There’s about six courts who have a need to replace their case management systems. We have a lot that are 30 years old. We have situations where courts are still on county mainframe systems and counties are saying we’re upgrading our mainframes and the cost will be ‘x’ which the courts can’t afford.” In an email, Herman added, “I want to emphasize that there is limited and dwindling funding for technology. We can’t keep courthouse doors open without functioning case management systems and more efficient business practices. And both the executive and legislative branches have made it clear that there will be no technology funding without a technology plan in collaboration with the courts.”

Some judges, while supportive of the efforts by the trial court-based technology forum, are skeptical of court officials and other judges with past connections to the controversial CCMS project, some of whom are on Herman’s task force and will be trying to convince lawmakers to fund the new software systems. “I can just imagine the legislature breaking out in laughter when they say, ‘Let’s see you have the $2 billion boondoggle and the same ship of people here asking for more money for technology,’ ” said Judge Andy Banks of Orange County Superior Court. His court currently uses an older version of CCMS, and has not shown any inclination toward switching to any of the new vendors. While Orange has been held up as a shining example of CCMS’ success as an IT system — and the court is currently leading a push towards electronic filing in California — a survey of CCMS users from that court was highly critical.

“It depends on who you talk to,” said Judge Banks. “There are those people deeply wedded to the AOC and to the idea that CCMS is really a Ferrari in the garage, and if we could fuel it it would be wonderful. I would say the majority of judges in Orange County don’t think it’s a great thing, a lot of our clerks don’t like it. But the official position of the people in power is to promote it and say, ‘We think it’s great,’ and then there are the rest of us who say this thing has been a boondoggle and a waste of money.”

Herman with the Judicial Council’s technology committee assured, “Every member of that task force was carefully selected because they represented an important constituency in the branch.”
Judge Steve White of Sacramento said he supports the trial court-based forum, separate from the technology committee. He also commended Oyung and Heather Pettit, Sacramento’s technology manager, who are leading members of the forum.

“Many courts tried to do this from the beginning and they were told they wouldn’t get funding and had to go the AOC way or they wouldn’t have anything. Because it wasn’t allowed to work, it was a factor in the debacle that CCMS turned out to be,” said White, who is head of the Alliance of California Judges, a reform group that often compared CCMS to the Titanic — enormous, expensive and doomed.

But he said if courts are putting proposals together on their own, there should be no problem. “It doesn’t present a problem if the AOC isn’t driving the agenda and this is done by the local courts,” he said. “In a sense they popped into the side car as we put this together. We have very talented people like Heather and Rob who really know how courts work and what courts need. They have advanced initiatives that are entirely different from CCMS because they’re affordable and they’ll work. As long as the AOC is riding in the sidecar and not driving it, it’s doesn’t matter to us. But if they are playing the role of central planners instead of just getting out of the way, that’s when it’s a problem.”

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JCW:

Several months ago the Alliance requested that Justice Douglas Miller, Chairman of the powerful Judicial Council Rules Committee, open up the proceedings wherein recommendations from the Chief Justice’s Strategic Evaluation Committee were to be discussed and voted on. Of course our request was denied and what we believed would happen has occurred. While the Council appeared to “adopt” all recommendations, the report’s recommendations are on a slow track to nowhere. Because of this cloak of secrecy surrounding Justice Miller’s committee we are left to speculate as to what did or did not occur.

Given that the actual reorg started before the SEC report was released and a proverbial lynch mob was forming in the trial courts over the adoption of the SEC recommendations and reforming the AOC, justice Miller and his committee did what any good politician does. They lied to you and keep lying to you while pushing the ball 18 months down the field. The theory here is that you are all absorbed in your usual day to day affairs of running your courts and doing your jobs. With so many less employees, you should have substantially less time to review and comment on the machinations of an SEC report that they would just assume that you forgot about anyways. After a recent purge of employees, they’ve begun hiring again and have even properly filed new budget change proposals to officially increase the AOC head count by 40 employees after years of having too many unofficial employees on the books.

The sad part about CCMS is that no one thinks it’s great, yet they will trot out their public face of unwavering support and suppress their personally held belief that it is and has been a boondoggle and that’s part of the problem in California’s judicial branch. People are afraid to tell the truth because the truth has consequences attached to it.