We call your attention to two legislative proposals under which the Judicial Council would arrogate to itself enormous new powers.
The first proposal, which percolated out of the Futures Commission, would allow the Council to reallocate vacant judgeships from one county to another “under a methodology approved by the council.” In other words, if a judge were to retire in Alameda County, that vacant judgeship could be added to the bench in Riverside. For more details, click on the report from the Futures Commission at this link. This “concept” was fast-tracked into a legislative proposal and presented to the council’s Policy Coordination and Liaison Committee last Thursday. You can find a memo in support of the proposal by Executive and Planning chair Douglas Miller and PCLC chair Kenneth So here. After the idea took on some flak, the PCLC will take up the proposal again on May 5.
Some counties—Riverside and San Bernardino in particular—undoubtedly need more judges. It might make sense to move judgeships from one county to another, although we doubt anyone believes they have too many judges after we have all repeatedly been asked to do more with less over the past several years. In any event, we’d like to know ahead of time the methodology under which those calls would be made and who’s choosing the methodology. We don’t believe the Judicial Council and its staff have shown they are up to the task.
Citing language from the last proposed budget, Justice Miller and Judge So suggest that Governor Brown is on board with this idea. But this is what the Governor actually said:
“[T]he Administration is proposing to work with the Judicial Council to reallocate up to five vacant superior court judgeships and the staffing and security complements needed to support and implement the proposal. This will shift judgeships where the workload is highest without needing to increase the overall number of judges.” [Emphasis added.]
The PCLC has translated the Governor’s willingness to consult with the Council in reallocating a handful of judgeships into a massive and permanent grant of authority to allocate any vacant judgeships according to a formula to be determined later and crafted in-house. That’s not what the Governor had in mind.
Moreover, this proposal may run afoul of the California Constitution, which prescribes in Article VI, section 4 that “[T]he Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court.” [Emphasis added.] Under our Constitution, the Legislature, not the Judicial Council or the AOC, has the authority to decide how many judges should serve in each county. We believe that the allocation of judges is best decided after vigorous and public debate by our elected representatives, not according to some obscure calculation performed by bureaucrats and ratified by a Judicial Council largely hand-picked by the Chief Justice.
The PCLC disingenuously implies that this idea was fully vetted at the Futures Commission’s recent public comment session, and that there was little opposition. But we were all told that the Futures Commission was only floating “concepts,” not drafting legislation. “This is not an implementation group. It’s an examination group,” claimed its Chair. That public comment session was hardly a fair hearing for a sweeping proposal sure to generate controversy.
But wait; there’s more. The proposal to give the Council control over reallocating judgeships isn’t the only dangerous idea that the Council is pushing.
As you know, the Legislature swept away our reserves, allowing the local trial courts to keep only one percent of their budget on hand and giving the Council control over an additional two percent. Assembly Member Obernolte proposed a bill, AB 2458, which would have allowed the trial courts to roll over any unexpended funds from one fiscal year to the next. Somehow, that bill got amended. As it reads now, it would add section 77203 to the Government Code:
“The Judicial Council may authorize a trial court to carry unexpended funds over from one fiscal year to the next.” [Emphasis added.]
You can check out the language of AB 2458 here. It passed the Assembly last Thursday, completely under the radar, and is now before the Senate.
So a measure originally designed to give the local trial courts some desperately needed control over their finances somehow got twisted into a vast delegation of power to the Council. If this bill becomes law, the Council would decide which counties get to save their surpluses and which counties have to “use it or lose it.”
Both of these proposals are being touted as efficiency measures made necessary by these tough budgetary times. But the budgetary crisis that the Council invokes to justify these extreme measures is a crisis that the Council and the AOC did much to create. Their mismanagement of billions of dollars in taxpayer money caused the Legislature to tighten the budgetary spigot—trial courts and the citizens they serve should not be made to pay the price for their missteps.
These legislative proposals are naked power grabs. We intend to fight them. We’ll keep you posted on any developments.
Directors, Alliance of California Judges