Saturday, October 8, 2011

Viewpoint: The Truth About the Judicial Council (from The Recorder legal newspaper)

The following article was circulated to the members of the Bench-Bar Coalition, and I'm circulating it a bit further because it provides an interesting and reasonably in-depth look at the workings of the Judicial Council that I think will be interesting to the readers of this blog. 
Judge Dave Rosenberg

Viewpoint: The Truth About the Judicial Council

Judge Dave Rosenberg
The Recorder
October 07, 2011

"It ain't what you don't know that gets you in trouble. It's what you know for sure that just ain't so."
— Mark Twain

Since I'm the new kid on the Judicial Council block, I've been trying to find out the truth behind the many claims I've heard about the council. There seem to be many "myths" floating around about the Administrative Office of the Courts and the Judicial Council. Here are just a handful of the claims I've heard so far, and my analysis of the facts.

Claim: Much of the work of the Judicial Council is done in secret.

Fact: That claim is certainly true – at least as to past practices. The first day of Judicial Council meetings used to be conducted in "closed session" with the public excluded. That's no longer the case. When new Chief Justice Tani Cantil-Sakauye assumed her position earlier this year, she instituted a number of changes, including opening the first day of Judicial Council meetings, increasing public comment and communication, and adopting rules of parliamentary procedure. I heartily support these changes which have begun to open the doors and windows to the work of the council.

Claim: The Judicial Council rubber-stamps recommendations made by the AOC.

Fact: Again, I can't speak for the past. But I can tell you that for the three Judicial Council meetings I've attended so far, this is most decidedly not true. Listen to the audiocast of the Sept. 9 council meeting at San Francisco Superior Court asked for $2.5 million in emergency funding to help keep most of its courtrooms open and reduce staff layoffs from 175 to 75 employees. The discussion was spirited and even heated at times and a number of different, often contradictory, proposals were floated by Judicial Council members before the council coalesced around a course of action and voted unanimously on the final proposal. While the council certainly asks AOC staff to provide detailed recommendations, council members ultimately make up their own minds. The council is made up of 21 judges, lawyers and legislators and 10 nonvoting advisory members and each expresses his/her own views on how the council should act. I've certainly never hesitated to voice my opinion.

Claim: A small group of insiders controls the Judicial Council.

Fact: Heck, I'm certainly the ultimate "outsider" from Yolo County and I'm on the Judicial Council by virtue of the chief justice's selection. On average, more than 400 justices and judges volunteer to participate in committees, advisory groups, task forces and working groups. Another 300 or so attorneys and laypeople also participate. Certainly, most of the discussions and debates occur within those groups and are often under the radar. In reality, hundreds of judges and other justice partners are involved in the decision making process.

Claim: The AOC allocates money to the courts.

Fact: The Judicial Council, not the AOC, allocates money based on recommendations from the 30 courts through 15 presiding judges and 15 CEOs and appellate court representatives included in the Trial Court Budget Working Group.

Claim: The California Court Case Management System has been mismanaged.

Fact: Yep, I agree. Any fair person reading the Bureau of State Audits report on CCMS would have to agree that this project had serious oversight problems. Fortunately, the Judicial Council accepted all of BSA's recommendations. After Chief Justice Cantil-Sakauye came on board in January she created a Judicial Council committee to oversee the project, and an executive committee headed by First District Court of Appeal Justice Terence Bruiniers has reported regularly on the project. The new AOC staff member managing the project also has an IT background — which wasn't true before.

Claim: CCMS doesn't work.

Fact: This claim was always a strange one, because the product wasn't completed until last spring. And just last month two independent reviewers — in reviews recommended by the BSA — said the product works. One lingering concern is that while some judges who have used CCMS like it, other judges who have used the system find fault with it. Clearly, there are still issues that need to be sorted out.

Claim: CCMS cost $1.9 billion

Fact: Development of CCMS cost $313.5 million over a 10-year period. The billion-dollar figures thrown out — ranging from $1.3 billion to $3 billion are theoretical (as is the $300 million savings each year) — depend on whether the system is fully deployed in 58 courts. And, frankly, that's the big problem we now face. How do we pay for deployment in the face of court budget cuts? Justice Bruiniers' team will consider different scenarios for deployment and at some point the Judicial Council will have to act. The status quo — using aging case management systems held together with chicken wire — is not prudent.

Claim: AOC has 1,100 employees.

Fact: The latest figures I've seen show that the AOC has 818 full-time employees, with a vacancy rate of 17.6 percent. These numbers do not include contractors or temporary employees for the AOC. Is the AOC too large for the functions it should perform? Good question. Chief Justice Cantil-Sakauye asks that same question and has tasked several committees with helping her find the answer.

Claim: If we cut the AOC in half, we would be able to funnel a substantial amount of money to trial courts to keep them open.

Fact: The entire AOC makes up a bit more than 3 percent of the judicial branch budget, while trial courts comprise more than 84 percent of the budget. Cutting the AOC in half would not provide a substantial amount of funds for these courts.

Claim: The AOC keeps J. Clark Kelso on the payroll at a high salary to run meetings.

Fact: Kelso doesn't work for the AOC. He's a federal court-appointed receiver in Plata v. Schwarzenegger, 10 C.D.O.S. 5369. The receiver has to develop a constitutionally adequate system of inmate medical care over which the state eventually can resume control. All funding for his position passes through the AOC from the California Prison Health Care Receivership Corp. This relationship was requested by U.S. District Judge Thelton Henderson, who asked that the receiver be based in the judicial branch due to possible conflicts with executive branch agencies. The branch is paid a modest processing fee to accommodate 'Henderson's request. The contract is in effect as long as Kelso acts as receiver.

Claim: The AOC recently conducted judicial training at a luxury resort.

Fact: The AOC follows state procurement policies on all expenditures, including meetings and educational events. Media reports on the judicial college have presented distorted views of the facility and the purpose of the training.

All new judges and subordinate judicial officers must complete the judicial college as part of their required new judge education under Rule 10.462 of the California Rules of Court. The training last August was held at the Dolce Hayes Mansion Hotel and Conference Center, owned and operated by the city of San Jose.

After a competitive bidding process, Dolce Hayes was selected. This hotel and conference facility met the meeting space requirements for the college and, notwithstanding the fancy "mansion" part of the name, also offered highly competitive sleeping room rates at $105 per night.

Claim: The AOC has $82 million in emergency funds available to the courts.

Fact: The emergency funding reserve is actually $9.848 million and is contained in the Trial Court Improvement Funds as established by statute (Govt. Code §77209(b)). Of that amount, $2.5 million has been allocated by the Judicial Council to San Francisco Superior Court, leaving $7.348 million in the emergency fund.

Dave Rosenberg is the presiding judge of Yolo County Superior Court, serves as chairman of the Trial Court Presiding Judges Advisory Committee, and as of Sept. 15 serves as an advisory member of the California Judicial Council and member of the council’s Executive and Planning Committee

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