Judicial Council Power Grab Resurfaces

Posted on May 24, 2016

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We recently reported on the ongoing campaign—opposed by much of the judiciary—to pass a bill granting the Judicial Council the power to reallocate vacant judgeships from one county to another.

Until last month, we thought that the idea was just a “concept” under discussion by the members of the Futures Commission. But it emerged in late April as a proposal before the Council’s Policy Coordination and Liaison Committee (PCLC), and was on the verge of approval before the first rumblings of dissent caused the PCLC to hit the pause button for a few days. The Trial Court Presiding Judges Advisory Committee (TCPJAC) did some hasty polling. Only 35 of 58 presiding judges responded. Forty-three percent of those polled—15 presiding judges—supported the idea, while nine “vehemently opposed” it and 11 stayed on the sidelines. The PCLC wound up voting in favor of a version allowing up to five positions to be shifted. You can read the Courthouse News story about the meeting here.

Even as the reallocation proposal was being bandied about in the PCLC—and even after the chair of the TCPJAC reported that “the presiding judges statewide are divided on this issue” and that the idea “has people nervous”—the five-judgeship version was already working its way before the Senate as a proposed amendment to AB 938, a bill on groundwater. You can find the proposed language in the attached file. The legislator who proposed the amendment promptly withdrew it, apparently as soon as he got wind of the fact that the judiciary was not all in favor of the idea.

We thought the whole thing was being shelved for now, or at least subject to further discussion in the Judicial Council itself. After all, according to its website, the PCLC’s charge is to “make[] recommendations on proposals for Judicial Council-sponsored legislation.” We figured that any proposed legislation that could so profoundly alter the makeup of each county’s bench would have to come up for public debate and an open vote by the Council.

We figured wrong. It’s back. AB 2341, a bill regarding health facilities, got completely gutted and transmogrified into a bill allowing the reallocation of up to five vacant judgeships. You can read the all-new bill here.

We oppose this bill. We think that the language is muddy; it could be interpreted as allowing up to five transfers from each court deemed overstaffed. We think the methodology to be used in assessing judicial needs is subject to change. The bill sets a bad precedent—once the Council gets the authority to move around a handful of judges, it will be far easier to sell the Legislature on giving it the authority to make wholesale transfers. Moreover, regardless of whether the number of judgeships in play is five or five hundred, and irrespective of the wisdom of taking judgeships from one county and moving them to another, the whole idea of delegating the power to allocate judgeships to the Council runs afoul of the California Constitution. Article 6, section 4 reads in part: “The Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court.” The Legislature, not the Judicial Council, makes the call on the number of judgeships in each county.

When can we stop playing Whac-a-Mole with this seriously flawed idea? When will the Council’s lobbyists give it a rest and quit operating in stealth mode? When will our branch decision-makers allow for a meaningful discussion, one which includes dissenting voices, on a matter of vital importance to the trial courts?

We’ll do our best to monitor developments in the Legislature, even amendments to groundwater and health facility bills, but there has to be a more open and transparent way to make important policy decisions than the one the Judicial Council has chosen here.

Directors, Alliance of California Judges

Click here for a link to the proposed legislation

Note from JCW: This post experienced a delay in processing. This news release was made four days ago on May 20th.