According to Doyle

AB 1208 Approved by Assembly

2012-01-30T20:32:00.000-08:00

Charles Calderon

AB 1208, Assembly Majority Leader Charles Calderon's bill to strip the Administrative Office of the Courts of its court funding authority and at least partially undo the centralization of the state's judiciary achieved over the past 15 years, was approved today by the state Assembly on an unofficial vote of 41-23.

As a bill introduced in the first year of the two-year legislative session (2011-12), AB 1208 had to be approved by its house of origin (the Assembly) by January 31, or else die by operation of the state constitution. The bill had been sitting on the Assembly Floor since last May, and had been the focus of incredibly intense lobbying by, among others, the Alliance of California Judges and organized labor in support, and the Judicial Council, California Commission on Access to Justice, California Chamber of Commerce, and the presiding judges of virtually all California's smaller counties in opposition.

Mike Feuer

Debate on the bill was extensive, intense, nonpartisan, and generally polite. Supporters of AB 1208, led by Calderon and Assembly Judiciary Committee Vice-Chair Don Wagner (R-Irvine), focused most of their arguments on the expansion of the Administrative Office of the Courts, allegedly to the detriment of the state's trial courts - with particular emphasis on the costs of the courthouse construction and CCMS centralized computer system "boondoggle." Opponents of the bill, led by Assembly Judiciary Committee Chair Mike Feuer (D-Los Angeles) and Sacramento Assemblymember Roger Dickinson, warned of the bill's potential to undo the benefits of 15 years of unifying the court system and the system of justice in California, and the inequalities and uncertainty that would result from returning court funding control back to the Legislature.

Most commenters - even the strongest proponents and opponents - noted candidly that the bill was "unfinished," "imperfect," and needed further work. The question for many appeared to be whether to pass the bill along to the Senate for further consideration, and stop it and revive the dialogue with other legislation. After an extended period of the bill remaining "on call" awaiting sufficient votes, the 41-vote threshold was reached and AB 1208 lived to continue its journey in the Senate.

Stand Up For Justice Rally in LA - Wednesday, January 18

2012-01-17T06:11:00.000-08:00

The "Open Courts Coalition" - a group of attorneys from around the state advocating for adequate funding for the judiciary - has organized a “Stand Up For Justice” Rally in Los Angeles to support adequate funding for California’s courts.

The Rally will take place on Wednesday, January 18, 2012, from 12:00 noon to 1:30 p.m. on Grand Avenue between 1st and 2nd Streets in downtown Los Angeles (in front of the Disney Concert Hall).

The organizing committee for the event firmly believes that it could and will be the largest single gathering ever in the United States by lawyers, judges, justices, organized labor and stakeholders in support of the Justice System.

The coalition reportedly is seeking to prevent further cuts to the judiciary's budget by the Governor and Legislature, and eventual restoration of the $350 million that has been cut from the judiciary's budget over the past two years. The budget released by Governor Brown on January 5, proposes no further cuts in the judiciary's budget for the 2012-13 fiscal year - IF California voters approve the Governor's tax increase initiative on the November ballot. If the initiative fails, the courts are looking at yet another substantial budgetary hit of $125 million - which the Governor suggested in his summary of the budget "is the equivalent of court closures equal to three days per month."

The following is a partial list of scheduled speakers for the "Stand Up for Justice" rally:

Paul R. Kiesel - Moderator

Justice Tani Cantil-Sakauye - Chief Justice of California

(a statement from the Chief Justice will be read)

Hon. Gray Davis - Former Governor of California

Justice Carlos Moreno - Former California Supreme Court Justice

Hon. Michael Feuer - Member of the California State Assembly

Sen. Joseph L. Dunn (ret.) - CEO, State Bar of California

Peter Glaessner - President, California Defense Counsel

Deborah Kelly - Directing Attorney of the Los Angeles County Bar Assn. Domestic Violence Project

Niall McCarthy - President, Consumer Attorneys of California

Gary Paul - President, American Association for Justice

Representative of AFSCME

Jon Streeter - President, State Bar of California

Hernan Vera - President, Public Counsel

Eric Webber - President, Los Angeles County Bar Association

Allan Zaremberg - President, California Chamber of Commerce

First Hearing on California's Civil Justice Crisis Will Be Tuesday (11/15) at Sacramento's McGeorge School of Law

2011-11-14T15:06:00.000-08:00

Justice Ron Robie

The first of four scheduled hearings being held across California "to demonstrate the fundamental role of both the courts and legal assistance in our society and explore the devastating effects, especially for low-income Californians, of chronic underfunding and recent budget cuts" will take place Tuesday, November 15, 2011, from 12:30-4:30 p.m. at McGeorge School of Law in Sacramento.

The hearings are co-sponsored by various entities, including the California Chamber of Commerce, the California Commission on Access to Justice, and the State Bar of California. Professional and administrative support is provided by OneJustice (formerly the Public Interest Clearinghouse).

According to the californiahearings.org web site, the first hearing is aimed at showing "that cuts in funding for the courts and legal services threaten efficient and effective use of taxpayer dollars and the protection of rights and equal treatment under the law."

The hearing will be chaired by Justice Ron Robie of the California Court of Appeal, and will consist of four panels:

Foundational Panel – Background on the Effects of the Economic Downturn and Underfunding on the Courts and Legal Services and Discussion of Increased Need for Access to the Courts and Legal Services.

Sharon Browne, Principal Attorney, Pacific Legal Foundation and Board Member, Legal Services Corporation
Justice Vance Raye, California Court of Appeal

Continuum of Services Panel - The Efficiency of the Continuum of Services and the Role of Courts and Legal Services in the Continuum.

Diane Bras, Family Law Facilitator, Superior Court of California
Martin Carr, Partner, Law Offices of Belzer & Carr and Board Member, Legal Services of Northern California
Sue Talia, private family law judge and member of the Limited Representation Committee of the California Commission on Access to Justice

Right to Counsel Panel - Why Everyone Should Be Ensured Representation.
Judge Steven K. Austin, Contra Costa Superior Court

James Brosnahan, Senior Partner, Morrison & Foerster LLP
Justice Earl Johnson (Ret.), Scholar-in-Residence, Western Center on Law & Poverty

Seniors Services Panel – The Integration of Legal Services and the Courts into Senior Services as an Example of Efficient Use of Taxpayer Dollars.

Coral Henning, Director, Sacramento County Public Law Library
Joanne Parke, client of Legal Services for Northern California (LSNC)

The schedule for subsequent hearings is:

November 30, 2011 – San Francisco

Administrative Office of the Courts

455 Golden Gate Avenue

San Francisco, California

Time: 1 p.m. to 5 p.m.

December 2, 2011 – Los Angeles

Southwestern Law School
3050 Wilshire Boulevard

Los Angeles, California

Time: 1 p.m. to 5 p.m.

December 7, 2011 – Irvine

University of California, Irvine School of Law

401 East Peltason Drive
Irvine, California

Time: 1 p.m. to 5 p.m.

For information on these upcoming hearings, please contact: info@californiahearings.org

Bench-Bar Coalition Seeks Real-World Examples of Impact of Judicial Branch Budget Cuts

2011-11-05T16:44:00.000-07:00

The California Statewide Bench-Bar Coalition (BBC), an organization of judges and bar leaders from throughout California, is compiling real-world examples of the impact of the cuts in the judicial branch budget that have taken place over the past couple of years (culminating in last year's massive reduction).

The following letter was sent last week to BBC members by Donna Hershkowitz, Deputy Director of the Administrative Office of the Court's Office of Governmental Affairs, who is in charge of compiling the examples (donna.hershkowitz@jud.ca.gov):

To: Bench-Bar Coalition Members

Re: Urgent Action Request: Reports on the Effects of Judicial Branch Budget Reductions on Legal Practitioners, Their Clients, and Court Users

I am writing to request your immediate assistance in gathering information on how the reductions to the judicial branch budget have impacted you, your clients, and members of the public who access trial court programs and services throughout the state.

We are in the process of developing the necessary information to convey to the legislative and executive branches the true nature of these impacts and the need to restore funding to the judicial branch budget. To be most effective, we must capture and share clear, meaningful examples of what these reductions mean in human terms and how access to justice has been compromised in California.

Specifically, we are asking that you immediately begin sending your observations and experiences—and those of your clients—as they occur to Donna Hershkowitz, assistant director of the AOC Office of Governmental Affairs by email at: donna.hershkowitz@jud.ca.gov. Donna will aggregate the information for use in statewide outreach and education efforts conducted by you, members of the judicial branch, and our justice system partners.

Your submission should include enough information to enable us to aggregate similar stories and present a picture of the cumulative effects on the public:

The trial court at which the incident you are describing occurred;
The type of case you or your client brought before the court;
The specific reduction in programs or services that impacted you or your client; and
The immediate, subsequent or residual effect that the reduction had on you or your client, and what that means in terms of access to and the delivery of justice.
Your contact information should we need to follow up with you on your submission.
For illustrative purposes, using the September 14 Oakland Tribune article on court services reductions in Alameda County as background, the following example could be submitted:

Superior Court of Alameda County, Hayward Hall of Justice
Traffic court/red-light camera ticket processing
Effective Monday, September 12, traffic court proceedings previously held at the Hayward Hall of Justice were moved to the Fremont Hall of Justice.
My client reported to me that he had received a traffic citation to appear at the Hayward Hall of Justice. Upon arriving at the Hayward courthouse, there were no signs posted at that location to alert the public that traffic cases would now be heard at the Fremont courthouse, so he had waited in line for one hour before learning from a clerk that he was at the wrong location. The subsequent impact on my client was that he then had to travel 12 miles through morning commute traffic to the Fremont courthouse, and upon arriving, found that he was at the end of a line of about 60 people that had already formed before the Fremont court opened at 8:00 a.m. After processing his ticket and driving the 12 miles back to Alameda, the client had missed three hours of work and pay for a matter that he could have handled at the Hayward courthouse within one hour. Note: Ideally, this example would continue to further illustrate the sustained impact to the client: Because he told his employer he would be one hour late to work, not three hours, the client, who is the sole provider for his family, was put on probationary status and is at risk of losing his job. This scenario presents added complications for clients without adequate access to transportation to outlying courthouses.
John Q. Barmember, Attorney at Law, (name of firm, address, phone number and email address)
Thank you for your urgent consideration of this request. Please contact Donna Hershkowitz in OGA at 916-323-3121 should you have any questions regarding the content we are seeking. We anticipate beginning statewide outreach activities immediately and will benefit greatly by having as much information as possible to share with decisionmakers. We look forward to hearing from you.

Donna Hershkowitz
Assistant Director
Office of Governmental Affairs
Judicial Council of California - Administrative Office of the Courts
770 L Street, Suite 700
Sacramento, CA 95814
916-323-3121, Fax: 916-323-4347, dia.poole@jud.ca.gov
www.courts.ca.gov

Rebuttal Viewpoint: Debunking Some 'Facts' About the Judicial Council, AOC

2011-10-18T09:45:00.000-07:00

Since I recently posted a letter from new Judicial Council member Judge Dave Rosenberg ("Viewpoint: The Truth About the Judicial Council"), that ran in The Recorder legal newspaper and had been circulated to members of the Bench-Bar Coalition, I thought it only fair and appropriate to post the rebuttal from two directors of the Alliance for California Judges (ACJ) that ran on Friday, October 14.

Viewpoint: Debunking Some 'Facts' About the Judicial Council, AOC

Judges W. Kent Hamlin and Kevin McCormick
2011-10-14 09:42:16 AM

A recent opinion piece by an advisory member of the Judicial Council addressing "myths" about the Administrative Office of the Courts and the Judicial Council exaggerates and misstates many legitimate complaints that have been made about branch leadership ("Viewpoint: The Truth About the Judicial Council," Oct. 10). The stated "truths" about the Judicial Council and the AOC are based in large part on "facts" that the AOC's own records have shown to be inaccurate, incomplete or misleading. We offer this response to highlight some of the "myths" erroneously stated as "facts."

Judge Kevin McCormick

Myth: "Development of CCMS cost $313.5 million over a 10-year period."

The $313.5 million figure is at odds with what the AOC reported to the Legislature in May. That report showed $454 million was spent on the CCMS project through the end of fiscal year 2009-10, and the AOC projected an additional $92 million would be spent in fiscal year 2010-11. If the AOC's documentation is accurate, CCMS has already cost $546 million.

Another AOC document entitled, "Administrative Office of the Courts/Judicial Council Active Contracts as of September 8, 2011," reflects that Deloitte Consulting had been paid $244,156,392 for its part in developing CCMS, and Science Applications International Corp. — the company providing the Arizona server for CCMS — has been paid $79,386,298. These two vendors alone have been paid more than $313.5 million.

These out-of-pocket costs are in addition to the "soft costs" of CCMS development: staff time spent in debugging CCMS and creating workarounds to make it usable, the cost of sending "subject matter experts" from the trial courts to help Deloitte "create" and "fine-tune" its product, and expenses for meetings, site visits and materials for members of the various CCMS committees.

The $313.5 million figure is far less than the $407 million the state auditor determined had been spent on CCMS as of June 2010. So unless no additional money has been spent on CCMS in the past 15 months — and the courts have received a refund of $93.5 million — this "fact" misses the mark by an amount sufficient to restore full funding to the trial courts this fiscal year. Now that's a fact worth noting.

Myth: "The billion-dollar figures thrown out, ranging from $1.3 billion to $3 billion, are theoretical ..."

The true cost estimate of $1.9 billion to $3 billion for full deployment of the CCMS system came from the state auditor, Elaine Howle, in her exhaustive 138-page report to the Joint Legislative Audit Committee. That was at a time when the AOC itself was advancing $1.3 billion as the total estimated cost of the project. Full deployment of CCMS was projected to cost a total of $256 million when the concept was originally "sold" to the Judicial Council and the AOC. Deloitte, the "seller" of this project, has now been paid nearly the entire "estimated" cost of the fully deployed system, but CCMS runs only a small portion of case management in seven counties. It is now unclear how the courts will ever afford to implement the system in all 58 counties, and a business case for doing so has never been fully articulated. Given that 32 superior courts told the state auditor that their existing systems will serve them for the foreseeable future, the claim that "aging case management systems held together with chicken wire" are the only alternative to CCMS is more "myth" t han "fact." Myth: Since there is an "executive committee headed by First District Court of Appeal Justice Terence Bruiniers" overseeing the project, all is now well with CCMS.

Justice Bruiniers has been one of the most outspoken proponents of the CCMS project for years. In his testimony before the Joint Legislative Audit Committee in April 2010, he argued that an audit of CCMS was unnecessary. It was only through the state auditor's report that the gross mismanagement and lack of oversight of CCMS was uncovered.

Following that report, Justice Bruiniers proclaimed that, "The judges who actually use CCMS uniformly and enthusiastically support CCMS." He also initially suggested that independent verification and validation of the system, as recommended by the auditor, was unnecessary. The auditor's report, and testimony before the Joint Legislative Audit Committee and the Assembly Budget Subcommittee, suggest otherwise. The failures are too extensive to chronicle here, but they have not been resolved by the creation of the myriad committees overseeing CCMS.

Myth: A call for an immediate reduction in the size of the AOC is premature because there are committees carefully scrutinizing the AOC's operations.

While we agree that a thoughtful analysis of the size, growth and necessity of the AOC is essential, the Strategic Evaluation Committee is not scheduled to make any recommendations until the summer of 2012. We are restricting or denying access to courts right now, as we furlough and lay off necessary court staff. We need to fully mitigate cuts to the trial courts immediately, and drastically reducing the budget of the AOC is the obvious place to start. Notwithstanding the claim that cutting the AOC's budget in half "would not provide a substantial amount of funds" for the trial courts, redirecting just one-fourth of the AOC's budget of $326 million would fully restore funding to the trial courts for fiscal year 2011-12. No doubt courts that are laying off staff and reducing services to the public would consider those funds "substantial."

Myth: The number of employees is overstated by those who contend the AOC has nearly 1,100 employees.

AOC records reveal 878 "employees" and 112 "temporary employees" hired through Apple One. Some of the "employees" that the AOC notes were "laid off" have been hired back as "temporary" employees at a substantially higher hourly rate.

Further, in 2011 the AOC executed 55 new "independent contracts" for technology projects — primarily CCMS — and retained many other "independent contractors" for construction, architecture, environmental consulting, real estate consulting, engineering, project management, inspection and other services. These "contractors" work alongside the AOC's 141 employees in the courthouse construction and management division which, according to the AOC website, provides "management services for California's court facilities, and performs design, construction, and renovation of California courthouses." With much of the courts' construction funding having been swept by the Legislature, and many court construction projects on hold for an indefinite period, do we need a committee to tell us that the AOC is overstaffed?

The AOC pays far more than 1,100 people. Unfortunately, the way the AOC maintains records obfuscates the actual number of workers. One must inquire how many people are paid "by or through the AOC," rather than simply asking how many "employees" they had on different dates, or the "truth" provided by the AOC paints an incomplete — and misleading — picture.

Myth: The Judicial Council does not "rubber stamp" recommendations of the AOC.

AOC recommendations to the Judicial Council are routinely approved without serious discussion and nearly every vote of the Judicial Council is unanimous. There have been a few spirited dissenting votes over the past year or two, but the council still largely defers to the recommendations of its administrative arm.

Even when facing the difficult decision of how to allocate $350 million in cuts to the judiciary's budget, the Judicial Council acted on recommendations from the AOC. There were no independent fiscal advisers, auditors or financial experts consulted. The AOC — the very bureaucracy that had a vested interest in protecting itself from the budget ax — was given the responsibility of suggesting how the cuts could best be absorbed by the judiciary.

Myth: Critics wrongly claim the AOC has $82 million in emergency funds.

We are not aware of any individual or group making this claim. What we have pointed out is that cuts of $82 million to the AOC and CCMS would restore full funding to the trial courts without any adverse impact to the public.

Myth: The Judicial Council is now more open to the public and decisions of the Judicial Council are no longer made in secret.

The opportunity to be heard is only meaningful if the Judicial Council is willing to consider the information being conveyed. On July 22, judges asked the Judicial Council to consider specific alternatives to the recommendations of the AOC. The AOC recommendations were adopted without any serious consideration of these alternatives. The request in August to reconsider that decision was also politely ignored.

As trial court judges we are encouraged by the pledge that judges may bring their concerns to their presiding judges — we have consistently supported a judicial governance model that leaves the important decisions to elected representatives of the trial courts. We only ask that our concrete proposals for change receive real consideration by the Judicial Council, and that our actual concerns not be dismissed by mischaracterizing those concerns as "myths" that are "floating around."

W. Kent Hamlin is a judge of the Fresno County Superior Court and Kevin McCormick is a judge of the Sacramento County Superior Court. They are both directors of the Alliance of California Judges.

CCBA-Sponsored/Supported Proposals Among Last Signed by Governor Brown

2011-10-11T20:41:00.000-07:00

Assemblymember Lowenthal

It came at almost the very end, but Governor Jerry Brown Sunday (October 9) signed into law the final CCBA-sponsored bill on his desk: AB 433, by Assembly Member Bonnie Lowenthal (D-Long Beach), which removes unnecessary impediments in the legal processes for obtaining a judgment relating to change of gender and, for California citizens, a revised birth certificate reflecting that change. The bill, which came out of (Resolution 04-12-2010, by the Bay Area Lawyers for Individual Freedom, is co-sponsored by theTransgender Law Center, Equality California, and the CCBA (see earlier post).

The signing of AB 433 gave the CCBA an 8-2 record for sponsored or supported bills sent to the Governor in 2011, including two others signed in the final two days before the Governor's deadline.

Assemblymember Swanson

One of those two bills, AB 1396 by the Assembly Committee on Labor & Employment (chaired by Assemblymember Sandré Swanson of Oakland, who presented the bill throughout its trip through the Legislature), was the culmination of two years of effort by the CCBA and the Beverly Hills Bar Association (Resolution 04-01-2009). The resolution, which would re-vitalize a statute protecting California employees working on commission that had been invalidated by court decision, was introduced in 2010 by then-Senator Denise Moreno Ducheny as SB 1370, but ultimately vetoed by then-Governor Arnold Schwarzenegger. This year the CCBA worked assiduously to address and resolve business concerns with the re-introduced bill, and did so well enough to win neutrality from the California Chamber of Commerce and Civil Justice Association of California, which clearly helped achieve its enactment. (See earlier post).

Senator Huff

The final CCBA-supported bill signed into law by Governor Brown in the final week was SB 161 by Senator Bob Huff (R-Diamond Bar), which allows school districts, county offices of education, or charter schools to participate in a program to train nonmedical school employees who volunteer to administer emergency anti-seizure medication to students with epilepsy. The bill is consistent with - though not as expansive as - Resolution 04-03-2010 by the Alameda County Bar Association, and was also the culmination of a multi-year effort.

The signings brought to a close a very successful year for the CCBA. The eight bills signed into law is the second-most for the Conference since it became an independent entity in 2001, and sets the stage for an even busier 2012, when many never CCBA-sponsored bills will be introduced and a number of two-year bills sponsored by the CCBA in 2011 will get their (possibly brief) second chance at life (see CCBA program matrix).

Fewer Law Degrees Grace Sacramento Walls (from Daily Journal)

2011-10-09T03:28:00.000-07:00

The following article from the Daily Journal legal newspaper (September 19, 2011) continues a theme I started working on nearly 20 years ago - so it's not surprising that I wound up providing much of the background information.

It's interesting to see the disparate viewpoints as to whether the radical fall-off in the number of lawyer-legislators (which dropped below 20% for probably the first time in California's history last session in terms of Members actually licensed to practice law) is detrimental to the process - and particularly whether more lawyer-legislators would improve legislative sensitivity to the importance of maintaining adequate funding for the judicial branch. For my part, I know it couldn't hurt.

Fewer Law Degrees Grace Sacramento Walls

But the impact of a mostly nonlawyer Legislature is unclear.

By Emily Green

When attorney John Montevideo meets with legislators to drum up support for bills affecting the state's courts system, he sometimes packs flowcharts. The visual aids allow him to walk some of the greener lawmakers through the legal process, to explain the difference between, say, "beyond a reasonable doubt" and "clear and convincing."

Montevideo, president of Sacramento-based plaintiffs' group Consumer Attorneys of California, found himself giving those presentations a lot this year.

The reason: Far fewer state lawmakers hold a law degree now than anyone can remember, a slow but steady turn from what was once a traditional path to the Capitol.

Of the 120 legislators in Sacramento in 1971, 56 were lawyers, or nearly 47 percent.

This year, just 24 lawmakers have law degrees, or 20 percent, according to numbers compiled by Larry Doyle, the State Bar's former Chief Legislative Counsel. Of those, 21 are Democrats and three are Republicans - one of whom is currently on military duty in Afghanistan. That breakdown reflects a wider party-affiliation disparity than currently exists in either house overall.

This shrinking proportion of lawmakers with legal training undoubtedly has changed the way business is conducted in Sacramento, with legislative staff and even lobbyists filling different roles.

But observers disagree on whether the effect is worrisome or inconsequential. Some Capitol staffers and lobbyists who are lawyers said the nonlawyer majority views bills regarding the courts system as less important. They also said more lawyers can mean more money for the judiciary, which was in short supply this year as requests for courts funding fell on deaf ears.

But others, including former Assemblyman Phil Isenberg, also a lawyer, said the impact is overstated. He said "practitioners feel better" if there are other lawyers in office.

Phil Isenberg

The shift became most noticeable after the implementation of term limits in 1990, observers said. That year, 30 percent of the Senate and Assembly were lawyers, according to the data compiled by Doyle. By 2007, that had dipped to 22.5 percent.

Under the term limits, legislators can serve a maximum of six years in the Assembly and eight years in the Senate.

With legislative seats opening up on a regular basis, it was believed that practicing attorneys would run for office as a "career capper," said Drew Liebert, chief counsel to the Assembly Judiciary Committee who has worked at the Capitol since 1984.

Drew Liebert

That hasn't happened. Instead, city and county government officials have become the go-to candidates to fill legislative seats. Interest groups, who don't want to waste time forming relationships with new legislators because of the limited years they're in office, "aggressively identify" local officials they like and help them run so that the relationship is already established, said freshman Assemblyman Roger Dickinson, a lawyer and former Sacramento County supervisor.

Another reason could be pay. Legislators in nonleadership positions earn $95,291 a year, while the standard rate for new associates at major law firms is $160,000 a year, not including bonuses.

Combine those factors with polls showing widespread dissatisfaction with the Legislature and "that makes it for everyone a less attractive place to work, certainly for lawyers who are skilled," Liebert said.

As the number of attorney legislators has shrunk, so has the number of legislative aides with law degrees because lawyers want more job security than term limits allow, according to Liebert. There were "at least twice as many staff members" who were lawyers before term limits as now, he said.

Curt Child

The shift concerns Curtis Child, the judiciary's chief lobbyist, who said lawyers are crucial advocates for the courts in budget negotiations.

In 2010, former Chief Justice Ronald M. George worked closely with lawyer and Assembly Judiciary Chairman Mike Feuer, D-Los Angeles, to negotiate a deal allowing the branch to avoid extensive budget cuts. Sen. Noreen Evans, D-Santa Rosa, a lawyer who then served as chairwoman of the Assembly budget committee, also helped.

Attorneys have "naturally been the judicial system's greatest advocates and protectors," Liebert said.

Lawyer legislators "make a huge difference in being able to articulate the needs of the branch," Child said.

Not so, says Isenberg, who co-authored one of the most important pieces of recent legislation affecting the courts - the transfer of funding for trial courts from the counties to the state.

"If there were more lawyers in the legislature, would the judiciary's budget fare better? Well, I'm sorry, but that ain't true," Isenberg said. "There is not a shred of evidence for that."

Isenberg also rejected the idea that lawyers help legal process related legislation get passed - save for one type. "You might need lawyers to be interested in really boring legal stuff," he said.

But Montevideo, CAOC president, attributed the stalling of one of his organization's priority bills - legislation to lower the standard of proof in elder-abuse cases - to the lack of lawyers on legislative committees.

Nonlawyer legislators can't fully comprehend the importance of lowering the standards of proof "because they haven't practiced it, they don't understand the significance of failing to change it," he said.

Dickinson, the Sacramento assemblyman, echoed that sentiment. He said he had a particularly difficult time explaining one of his bills - also sponsored by the CAOC - to fellow lawmakers. The bill, which ultimately stalled, sought to keep motions to compel arbitration out of the appellate courts in an effort to speed up judicial review.

Mike Belote

"I worked very hard at trying to figure out ways to explain it to nonlawyers in a way that would make sense to them," he said. "It's not because they're dumb or anything. It's because it's not part of their world. It's not part of their jargon."

Mike Belote, lobbyist for the California Defense Counsel and California Judges Association, doesn't buy that nonlawyers are harder to educate about bills.

"Being a lawyer doesn't always mean they would understand the bills any better, to be honest," Belote said. "I'm a lawyer, and I have a heck of a time reading some of these bills."

State Bar Board Begins Transition Process in Earnest

2011-10-08T21:04:00.000-07:00

The State Bar of California has begun the work of transitioning the Board-of-Trustees-to-be (né Board of Governors) from the current 23-member, mostly-elected configuration to the new, 19-member, mostly-appointed configuration that will take effect under the recently-enacted SB 163 (see earlier post).

A special Governance Transition Plan Subcommittee of the Board's Planning, Program Development and Budget Committee, chaired by third-year governor Patrick Kelly of Los Angeles, has posted a memo on the Bar's web site, outlining initial options for transitioning from the old board to the new model. The key issue to be decided will be how to handle the issue of elected lawyer representatives on the board, who make up 15 members of the current board (elected from seven districts established by the Bar), but only six members on the board-to-be (elected from districts coinciding with the six districts of the California Courts of Appeal).

The subcommittee, which, in addition to Kelly, includes attorney members Alec Chang, Craig Holden, and Loren Kieve, and public members Dennis Mangers and Gwen Moore, will hold its initial meeting on Monday, October 10, from 11 a.m. to 2 p.m. at the Bar's San Francisco office.

The final plan has to be submitted to the Legislature by January 12, 2012. The transition must be accomplished by October 14, 2014, following the expiration of the term of office of all current elected attorney members of the Board.

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

2011-10-08T16:40:00.000-07:00

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 www.courts.ca.gov/15390.htm. 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

LAO Calls for More Centralized Court Budgeting Authority

2011-10-04T13:21:00.000-07:00

The state Legislative Analyst's Office (LAO) entered the year-long battle between the Administrative Office of the Courts (AOC) and dissident local judges last week (September 28) with the issuance of its report on "Completing the Goals of Trial Court Realignment."

The report addresses the issue of how well trial court consolidation enacted by the Legislature in the mid-1990's (see AB 233, Escutia and Pringle, Chapter 850, Statutes of 1997 - known and cited by its terms as the "Lockyer–Isenberg Trial Court Funding Act of 1997") has worked, and concludes that significant problems remain, beginning with a balkanized system of determining pay, benefits and working conditions for court employees, and "inadequate state oversight over trial court performance." The report includes several recommendations to address these concerns, most involving expanding the authority of the AOC.

Chief Justice Tani Cantil-Sakauye and
Assemblymember Charles Calderon

The report was immediately condemned by the Alliance of California Judges, which is sponsoring legislation (AB 1208) by Assembly Majority Leader Charles Calderon to do exactly the opposite - i.e., to remove funding authority from the AOC and Judicial Council, and vest it instead in each of the 58 local courts. The Metropolitan News-Enterprise reported that Calderon and the alliance were highly critical of the LAO’s recommendations, and particularly the report’s failure to mention the controversy over the AOC’s oversight of the CCMS state-wide case management system, which Calderon called a “debacle” (though as Sacramento Bee columnist Dan Walters noted in his column of October 2, 2011, "the report did confirm one of the ACJ's most common complaints – that the has grown exponentially since realignment began, from a budget of $77 million and 244 employees in 1997 to $362 million and 960 staffers now."

The California Judges Association (CJA) issued even a more firmly worded objection to the LAO report, saying it was "opposed to this complete centralization and encroachment upon the constitutional authority of local trial courts." CJA said that the report "reflects a fundamental failure to understand and acknowledge that our democracy is based upon the existence of three co-equal and separate branches of government. The judicial branch is not merely a state department under the direction of the executive or legislative branch, nor can it be centralized in the same ways as other branches of government."

The AOC and Supreme Court, on the other hand, have elected to downplay the report. Chief Justice Tani Cantil-Sakauye issued a statement saying that while the report had "appropriately engendered much discussion within the branch," the courts have more immediate and important concerns at the moment, in the form of the court funding crisis. "By necessity, the Judicial Council has been laser focused on budget matters," the Chief Justice said. "Ensuring public access to courts by restoring the judicial branch budget remains our main concern at this time and for the foreseeable future.”

Notwithstanding the Chief Justice's efforts to minimize the issues raised by the LAO report, however, the matter almost certainly will take center stage in January, 2012, when AB 1208 faces a constitutional deadline to either be approved by the Assembly or die by operation of law.

Governor Vetoes Conference-Sponsored AB 1147

2011-10-03T09:36:00.000-07:00

Assemblymember Yamada

To the great surprise of the bill's sponsors - the CCBA and the Women's Lawyers of Sacramento - and pretty much everyone else, Governor Edmund G. Brown, Jr., Sunday vetoed AB 1147 by Assemblymember Mariko Yamada (D-Davis). The bill would have specified that, in cases involving teen parents in foster care, the reports social workers already are required to prepare include information regarding what services were being provided to the minor parent to provide a permanent and safe home for the child.

The purpose of AB 1147 was to confirm (or not confirm) that what the Legislature had decided needed to be done in 2004 (SB 1178, Kuehl, the Teen Parents in Foster Care Act) was being done - and to do so in the most cost-effective manner possible, by simply adding another question or two to an already-required report. As noted in CCBA's letter to Governor Brown requesting his signature, AB 1147 provided for the "collection of necessary and valuable information with an absolute minimal investment of time, energy and money."

The bill received strong support from the National Association of Social Workers, California Chapter (NASW-CA), as well as the Children's Law Center of Los Angeles, the Children's Advocacy Institute, California Women Lawyers, the Family Law Section of the State Bar, and other legal and women's groups. Both legislative fiscal committees agreed that the bill had minimal cost. In fact, the only opposition to the bill came very late in the year from the Department of Finance, which posed the interesting theory that, while it would cost very little to comply with the bill's requirements, any bill that changed an existing program that was being realigned in any way could make the entire program again subject to reimbursement claims. The concerns did not persuade the Legislature, both houses of which approved the bill unanimously.

Governor Brown, however, saw things differently from everyone else. In his veto message, the Governor said that while "(n)o one can question the desirability of minor parents in foster care receiving whatever help they need to become good parents," he did not believe AB 1147 would further that goal. Brown argued that the current case plans social workers are required to file every six months "chronicle every aspect of the foster child's life, including whatever is needed to become a good parent. . . Placing in statute one more specific plan element, as this bill does, just adds to the bureaucratic complexity without really assisting the foster your to live a better life. . . The more time adults in the foster care system spend writing and reading reports, the less time they have for the guidance and human caring that make the real difference."

While one can admire Brown's desire to elevate personal caring over insensitive bureaucracy, the veto message misses the point of AB 1147, which is to ensure that teen parents in foster care are receiving the services the Legislature and a former governor decided they should have. Unfortunately, the unequivocal nature of the veto message strongly suggests that another way will have to be found to achieve this goal.

Governor Signs Bill Re-configuring State Bar Governance

2011-10-02T19:13:00.000-07:00

Governor Edmund G. Brown, Jr., has signed into law SB 163 by Senator Noreen Evans (D-Santa Rosa), which makes the most profound changes in the State Bar of California since the professional disciplinary system was instituted over 20 years ago.

Senator Noreen Evans

The changes made by the bill range from the mostly symbolic (changing the name of the Bar's governing body from the "Board of Governors" to the "Board of Trustees"), to the mostly obvious (establishing in statute that the primary purpose of the State Bar is the protection of the public), to the substantive (changing the composition of the governing board from one dominated (15 of 23) by attorneys elected by their fellow attorneys to one comprised primarily of political appointees. Once a "grandfathering" process has been completed to permit the current contingent of elected governors to serve out their terms, the resulting board will consist of 19 members, including six attorney members elected from new districts coinciding those of the courts of appeal; five attorney members appointed by the Supreme Court, which is encouraged to appoint the members from specified demographies; non-attorney public members appointed by the Governor, Senate Rules Committee, and Speaker of the Assembly (the same as current law); and two new attorney members appointed by the Senate Rules Committee and Speaker of the Assembly.

The Board of Governors has appointed a "Transition Plan Subcommittee" of its Planning, Program Development and Budget Committee, which will develop a "Proposed Plan to Transition the Bar to a Smaller Board." The committee is chaired by third year governor Patrick Kelly of Los Angeles, and includes attorney members Alec Chang, Craig Holden, and Loren Kieve, and public members Dennis Mangers and Gwen Moore. It will hold its initial meeting on Monday, October 10, from 11 a.m. to 2 p.m. at the Bar's San Francisco office.

The undisputed good news about the signing of SB 163 is that the bill extends for another year the Bar's authority to collect fees from the state's lawyers, thereby ensuring the continuation of the Bar's activities - and primarily its attorney discipline system - for the coming year. The fees authorized under the bill are reduced by a $10 rebate, and all members will also be given the option of designating that $20 of their fees (as opposed to the current $10) go to support legal services programs. In addition, the bill memorializes the Bar's agreement to transfer $2 million in each of the next two fiscal years from funds received from non-mandatory sources to the IOLTA program, again for the support of legal services.

For a detailed description of these and other provisions of SB 163, see the final Assembly Judiciary Committee analysis of the bill prepared for its September 2, 2011, hearing.

Mixed Week for CCBA Program

2011-08-28T18:59:00.000-07:00

The past week was filled with both highs and lows for the Conference of California Bar Association's (CCBA) legislative program. On the high side, four CCBA-sponsored or co-sponsored bills passed their final legislative test and are being prepared to be sent to Governor Brown for signature or veto.

On the low side, one key component of the CCBA program (AB 308 - Ammiano) and another highly visible bill supported by the Conference (SB 490 - Hancock) were held in committee and now must wait for next year.

The bills that are being sent to Governor Brown included:

AB 433 by Assemblymember Bonnie Lowenthal would conform state law to the medical standard applied by the U.S. state department and current medical understanding of gender transition to simplify the existing process by which a transgender person obtains appropriate identification document. The bill, which is consistent with CCBA Resolution 04-12-2010 sponsored by the Bay Area Lawyers for Individual Freedom, passed the Senate on a vote of 23-13, and received concurrence in Senate amendments from the Assembly, 51-26.
AB 1147 by Assemblymember Mariko Yamada would maximize the efficient use of resources by requiring social workers to include information about what age- and developmental-appropriate services teen mothers in foster care minor received, pursuant to existing law, in reports the social workers are already required to prepare. The bill is based on CCBA Resolution 03-04-2010, sponsored by the Women Lawyers of Sacramento.
AB 1384 by Assemblymember Steven Bradford would authorize a court, after one year, to expunge non-vehicular infractions and misdemeanors (with specified exceptions) from a person’s record in its discretion and in the interests of justice. The bill would complete the enactment of Resolution 06-06-2009 by the Santa Clara County Bar Association, the major provisions of which were enacted last year in AB 2582 (Adams).
AB 1023, the annual Maintenance of the Codes bill carried this year by Assembly Judiciary Committee Vice-Chair Don Wagner, includes CCBA Resolution 10-01-2010 by the Bar Association of Northern San Diego County, which makes an important technical correction in the law relating to SLAPP suits.

Of the two bills that were held in committee, AB 308, was the biggest disappointment, given the time and effort expended in seeking its passage. The bill (CCBA Resolution 01-13-2010 by the LACBA) would mandate the creation of new protocols and procedures to better ensure the accuracy of eyewitness identifications in criminal matters. It was held in the Senate Appropriations Committee due to cost concerns, after the Department of Justice increased its projected cost of the bill to $1.2 million - nearly five times the estimated cost of virtually duplicate measures considered by the Legislature in earlier years. (See earlier post).

SB 490, Senator Loni Hancock's bill to require a public vote on whether California's death penalty should be abolished, stayed in the Assembly Appropriations Committee at the request of the author, who determined that she didn't have the votes to enact the bill (see story in San Jose Mercury News). The decision came only a day after Governor Brown suggested in news stories that he would be supportive of letting the people vote on the question, though without commenting directly on SB 490. However, it was clear to Sen. Hancock in the all-important process of counting the votes that there simply weren't enough members of the Legislature willing to commit to expending the money to put the issue on the ballot, given polls showing that as many as seven in 10 Californians still support capital punishment for the most heinous of crimes. The CCBA supported the measure based on its consistent support of resolutions calling for the abolition of the death penalty, most recently 01-01-2010 by the Bar Association of San Francisco. (See earlier post).

State Bar to Consider "Re-organization Separation Plan"

2011-08-24T13:32:00.000-07:00

It appears the State Bar is preparing for a major reorganization, above and beyond that contemplated by SB 163 (Evans), this year's Fee Bill. At its meeting scheduled for August 30, 2011, at the Bar's Los Angeles offices, the Bar's Board of Governors will consider and vote upon a "Re-Organization Separation Plan" that proposes to ease the way out for Bar employees dislocated by a "structural reorganization" of the Bar currently being developed by Executive Director Joseph Dunn.

Joseph Dunn

The details of the reorganization have not been revealed to the public (and possibly have not been finalized);the Board agenda item describing the separation plan mentions that its goal is not to reduce stuff but to "enhance performance"and change the institution's "organizational culture." The proposed reorganization plan would help achieve this goal by providing an enhanced separation package for line and confidential (but not executive staff) employees who elect to leave the Bar.

The proposed reorganization is separate and apart from the changes in the State Bar's governance which are anticipated to take place with the expected enactment of SB 163, which (if the bill is enacted in its current form - see earlier post) will change the Bar from an organization overseen primarily by elected attorneys. SB 163 is currently on the Assembly Floor awaiting a final vote by that house, which would send it back to the Senate for concurrence and then to Governor Brown for signature. There have been rumors that the bill may be returned to the Assembly Judiciary Committee for some late amendments, but so far nothing of kind has taken place.

The changes contained in the proposed reorganization and anticipated enactment of SB 163 come hard on the heels of major changes in the Bar's attorney discipline system earlier this year, beginning with the resignation of Chief Trial Counsel James Towery and the subsequent dismissal of four of the top administrators of the discipline system. The issue of an Interim Chief Trial Counsel is also on the agenda for the Board's August 30 meeting, but to be considered in closed session as a personnel matter.

A Suspenseful Legislative Return

2011-08-18T23:20:00.000-07:00

The Legislature returned from its summer recess Monday (August 15), and immediately got down to the business of deciding which of hundreds of bills deemed to have fiscal impact should move forward - and mostly which should be held on the Suspense File maintained by each of the Appropriations Committees of the two houses.

The Suspense File is the repository for all bills deemed to have a fiscal impact in excess of $50,000 to the General Fund or private funds, or $150,000 from any other funds. Bills are placed on the Suspense File over several hearings, so that their aggregate costs can be compared to available revenues. Then the committee leadership and staff identify which bills should be moved off Suspense and which should be held - a decision that is almost invariably confirmed at the committee's last regularly-scheduled hearing before the deadline for considering fiscal bills.

Even though a bill is earmarked for Suspense does not mean it won't be the subject of extensive and passionate testimony, however, as authors and proponents try to make the case for their bills to be one of the fortunate few that ultimately come off Suspense. That was the case this week for several bills sponsored or supported by the CCBA.

On Monday (August 15), the Legislature's first day back from its summer recess, the Senate Appropriations Committee considered (see video at 1:25:00) AB 308 (Ammiano), a CCBA-co-sponsored bill to require the development of new protocols and procedures for law enforcement to use in eyewitness identification. The committee also heard testimony on AB 52 (Feuer), which would require insurers to obtain the approval of proposed rate increases by either the Department of Managed Health Care or the Department of Insurance.

John K. Van de Kamp

On Wednesday (August 17), the Assembly Appropriations Committee considered SB 490, Senator Loni Hancock's measure to ask California's voters to repeal the death penalty, given its massive costs and almost total non-application. Former Attorney General (and frequent CCBA delegate) John Van de Kamp testified in favor of the bill, which is supported by the CCBA. The hearing can be viewed here (beginning at the 26:00 mark).

All three bills mentioned (and hundreds of others) will be voted on next week, before the August 26 deadline for bills to be heard and reported by fiscal committee.

Governor Signs CCBA Protective Order Notice Bill

2011-07-26T11:07:00.000-07:00

Governor Jerry Brown Monday (July 25) signed into law AB 454 by Assemblymember Jim Silva, the third bill sponsored by the Conference of California Bar Associations (CCBA) to reach his desk.

AB 454 increases the protection provided by California’s restraining order law by requiring that the protected party be given prior notice of any hearing to modify or terminate a restraining order. Notice must be provided either by by personal service or, if the protected party is registered with the Safe at Home Program, by service on the Secretary of State. If the protected party cannot be notified prior to the hearing, the court must either deny the motion to modify or terminate the order without prejudice or continue the hearing until the protected party is properly noticed. A protected party may waive his or her right to notice if he or she is physically present in court at the time of the hearing and does not challenge the sufficiency of the notice.

As the CCBA noted in its letter urging Governor Brown to sign the bill, restraining orders are issued specifically to provide protection for some individuals from violence or the threat of violence by others. Because these circumstances involve a heightened potential for physical danger and death, the notice requirements for terminating or reducing the protection provided by these orders early should be heightened as well, to ensure to the extent possible that protected parties receive actual notice. AB 454 would help accomplish this important goal.

AB 454 came out of CCBA Resolution 05-07-2009, which was sponsored by the Women Lawyers of Sacramento. Originally introduced to apply only to protective orders issued under the Family Code, AB 454's provisions were expanded to make the protections applicable to all parties protected by a civil protective order - including family, civil harassment, workplace harassment, postsecondary education harassment, juvenile, and elder and dependent adult abuse protective orders. This provides consistency through the various codes, and is also indicative of the merit the Legislature perceived in the original proposal.

The bill passed both houses of the Legislature without a 'No' vote, and was supported by:

California Partnership to End Domestic Violence
Chief Probation Officers of California
California National Organization for Women (CA NOW)
Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM)
California Commission on the Status of Women (CCSW)
California Probation Parole and Correctional Association (CPPCA)

AB 454 is now Chapter 101, Statutes of 2011, and will take effect January 1, 2012.

Second CCBA Bill Signed into Law

2011-07-13T07:16:00.000-07:00

Assm. Alyson Huber

Governor Jerry Brown Tuesday (July 12) signed into law the second CCBA-sponsored bill to reach his desk this year, AB 1067 by Assemblymember Alyson Huber. The bill is now Chapter 78 of the Statutes of 2011.

Developed by the San Diego County Bar Association (CCBA Resolution 13-09-2009), AB 1067 addresses a split of authority as to whether the denial of a motion to reconsider an order pursuant to Code of Civil Procedure §1008 is separately appealable, codifying the majority view that such orders are not appealable and providing additional clarifications. Overall, the bill will eliminate confusion, reduce the number of appeals in this area, and thereby promote judicial economy – all of which is particularly beneficial for the courts during the current fiscal crisis. Because of this, AB 1067 was strongly supported by the Judicial Council.

The author of AB 1067, Assemblymember Huber, is not only one of the dwindling number of attorney members of the Legislature, but is the only sitting lawmaker who has actually been a delegate to the CCBA. AB 1067 is one of two CCBA-sponsored bills carried by Assemblymember Huber. The second, AB 238, is based on a resolution (11-05-2005) that she authored as a Conference delegate.

Six of eight CCBA-Backed Bills Emerge from Busy Weeks of Committee Hearings

2011-07-11T07:39:00.000-07:00

The two weeks leading up to the annual deadline for all bills to clear their second-house policy committee are among the busiest in the legislative calendar. That was particularly true for this year's CCBA Legislative Program, which saw hearings on eight of its sponsored/supported measures - with six moving forward and two running aground.

Much of the action took place in the Public Safety committees of the two houses where, in three separate hearings, two significant CCBA-backed bills were approved, while another significant CCBA-co-sponsored bill fell temporary (we hope) victim to that state's lack of prison beds:

The last bill, AB 545 by Assembly Speaker John A. Pérez, would add persons in a dating or engagement relationship to the list of person's protected by the felony domestic violence battery statute (Penal Code §273.5). The bill, co-sponsored by the Los Angeles District Attorney's office and the CCBA (Resolution 06-05-2009, sponsored by 10 individual delegates), was held in Senate Public Safety Committee at its June 28 hearing (starts at 22:00 mark). See related blog post.
One week later, at its July 5 hearing, the Senate Public Safety Committee approved CCBA-co-sponsored AB 308 (Resolution 1-13-2010 by the LACBA) by Assemblymember Tom Ammiano. The bill would require the Department of Justice, in consultation with the Commission on Peace Officer Standards and Training, local law enforcement agencies, prosecutors, defense attorneys, and other legal experts, to develop guidelines relating to the collection and handling of eyewitness evidence in criminal investigations. The objective is to ensure reliable and accurate identifications of criminal suspects, and to minimize the chance of suspect misidentification, which costs society both through wrongful incarceration of the innocent and the failure to pursue and convict the guilty. (See earlier post)
Finally, on July 7, the Assembly Public Safety Committee approved SB 490, Senator Loni Hancock's newly-created bill to put the question of eliminating the death penalty to the voters. (see related blog post).

Three bills sponsored or co-sponsored by the CCBA found their way to the Senate Judiciary Committee, with three different results:

The committee waived hearing of AB 1147 by Assemblymember Mariko Yamada, which had won unanimous approval of the Senate Human Services Committee the week before. The bill, developed by the Women Lawyers of Sacramento (Resolution 03-04-2010), had been double-referred to the Judiciary Committee, but now moves directly to the Appropriations Committee. (See earlier post.)
On another double-referral, the committee approved AB 1396 by the Assembly Labor & Employment Committee, which had earlier won approval of the Senate Labor & Industrial Relations Committee. That measure, from the BHBA (Resolution 04-01-2009), goes directly to the Senate Floor.
The committee rejected AB 699 by Assemblymember Don Wagner, which would have added California to the growing list of states which authorize the use of Revocable Transfer on Death Deeds for estate planning purposes (Resolution 12-06-2009 by BASF). The bill earlier had passed the Assembly on a vote of 78-1. Because the author declined to seek and obtain reconsideration, the bill is dead. (See clip, beginning at 1:21:00 mark).

Rounding out the busy two weeks, two bills supported by the CCBA were approved by their respective policy committees.

AB 52 by Assembly Member Mike Feuer, which would require pre-approval of health insurance rate increases (see earlier post), was approved by the Senate Health Committee on a vote of 5-3. The bill is supported by the CCBA, as consistent with provisions of Resolution 02-02-2010 developed by the Beverly Hills Bar Association. (See earlier post).
SB 161 by Senator Bob Huff was approved by the Assembly Education Committee. The bill, which is consistent with Resolution 04-03-2010 sponsored by the Alameda County Bar Association, would authorize school districts to train non-medical school employees who volunteer, to administer emergency antiseizure medication to students with epilepsy.

CCBA-Sponsored AB 545 Becomes R/OCA Victim

2011-07-09T16:08:00.000-07:00

Question: How can a bill which is authored by the Speaker of the Assembly; which enjoys the strong support of law enforcement, women's groups, and anti-domestic violence organizations statewide; and which passed the first house of the Legislature without a 'No' vote, still be held in the Senate Public Safety Committee?

Answer: When the bill comes up against the committee's absolute R/OCA policy.

The bill in question is AB 545 by Assembly Speaker John A. Pérez, which would add persons in a dating or engagement relationship to the list of person's protected by the felony domestic violence battery statute (Penal Code §273.5), thereby conforming the list of protected persons to all other DV-related statutes in the Penal, Family, Civil and Evidence Codes - and providing needed protection to, among others, pregnant teenagers who do not live with the father of their child-to-be. The bill is co-sponsored by the Los Angeles District Attorney's office and the CCBA (Resolution 06-05-2009, sponsored by 10 individual delegates under Conference rules), and is supported by the California Partnership to End Domestic Violence, the Women Lawyers Association of Los Angeles, the California State Sheriffs’ Association, the California Commission on the Status of Women, and many others.

R/OCA stands for "Receivership/Overcrowding Crisis Aggravation" and, at its simplest, is a policy adopted by the Senate Public Safety Committee in 2007 in response to the prison overcrowding issue (in which the U.S. Supreme Court last May affirmed an order by a three-judge federal panel requiring California to reduce its inmate population to 137.5 percent of design capacity -- a reduction at that time of roughly 40,000 inmates -- within two years) by holding in committee all legislative proposals which "could further exacerbate prison overcrowding through new or expanded felony prosecutions."

Because it would expand the list of persons who could be prosecuted for felony domestic violence (to include persons in a dating or engagement relationship), AB 545 fell into the R/OCA policy - even though in real life the bill probably would serve to reduce the number of individuals actually serving time in prison by making alternative - and more appropriate - sentencing available (e.g., felony probation). Thus, after receiving extensive testimony in support of the bill (and no testimony against) during the AB 545's June 28 hearing, committee Chair Loni Hancock announced with reluctance, and with apparent support for the bill's intent, that AB 545 would be held in committee until next year (see video of the hearing, starting at the 0:22:00 mark).

The good news is that the Budget package of bills recently signed into law by Governor Brown provides the framework for the state to comply with the federal court's order to slice California's prison population through the Governor's prison realignment program, and Hancock did express an intent to reconsider the R/OCA policy next year. The question is whether the state is far enough along towards meeting the goal by next June for AB 545 (or any other R/OCA victims) to be considered on their merits alone.

CCBA-Backed Bill to Seek End to Death Penalty Advances

2011-07-08T17:36:00.000-07:00

Senator Loni Hancock

Legislation supported by the Conference of California Bar Associations to place a moratorium on California's death penalty and place the issue of its retention or repeal before the voters has passed its first test, winning approval of the Assembly's Public Safety Committee (click here for a video of the hearing). The bill now goes to the Assembly Appropriations Committee, where it is expected to be heard in mid-August.

SB 490 by Senator Loni Hancock (D-Oakland), Chair of the Senate Public Safety Committee, was "introduced" on June 28 by deleting its original provisions and replacing them with the death penalty-related language (a process known as "gut-and-amend" in the Legislature). The introduction followed the release last month of a report published in the Loyola Law Review by 9th U.S. Circuit Court of Appeals Judge Arthur L. Alarcon and Loyola Law School Professor Paula M. Mitchell, which calculated that capital punishment has cost California $4 billion since it was reinstated 34 years ago, yet just 13 inmates have been executed -- none in the past five years. The report recommends that voters be given the opportunity either to tax themselves to cover those costs or to eliminate them by ending capital punishment. (See related LA Times story).

The CCBA, which includes both criminal defense attorneys and prosecutors among its membership, has a long history of supporting resolutions (all sponsored by the Bar Association of San Francisco) calling for a repeal of California's death penalty law, (e.g., 01-01-2010, 06-03-2009, 02-21-2008, 03-06-2007, and 04-03-2003), or a moratorium in its application (09-16-2006 and 03-07-2004). Another resolution (03-04-2011) has been submitted for consideration at the 2011 meeting of the Conference in Long Beach.

The hearing produced informative and passionate testimony on both sides, as detailed in the extensive news coverage (see e.g., articles in the Sacramento Bee, San Francisco Chronicle, Vacaville Reporter, and Ventura County Star, and a supporting editorial in the San Jose Mercury-News). Due to time constraints, each side was permitted three primary witnesses. Testimony for all other witnesses was limited to one minute. The CCBA was in the latter witness category; however, the organization's letter in support of the bill was quoted extensively in the official committee analysis of the bill.

The fate of SB 490 is far from certain. Despite the enormous cost and the very real concern about executing the innocent, law enforcement in particular is strongly opposed, contending that its elimination would remove a real deterrent to potential cop-killers. In addition, the death penalty historically has been popular with California voters, so even if a majority of legislators in both houses are willing to put the issue to the voters, there is some question that Governor Brown will sign the bill - and more question still that the voters will approve. Thursday's hearing therefore was just a first step.

First 2011 CCBA Bill Signed into Law

2011-07-05T07:29:00.000-07:00

Assemblymember Jim Silva

Governor Edmund G. Brown, Jr., has signed into law the first CCBA-sponsored bill to cross his desk since he took office. Last Friday, July 1, Brown gave his approval of AB 354 by Assemblymember Jim Silva, which eliminates an ambiguity in existing law by clarifying that a person who has, in bad faith, used undue influence or committed elder financial abuse to steal from the estate of a decedent, conservatee, minor, or trust, is liable for damages equal to twice the value of the property taken.

AB 354, which passed both houses of the Legislature without a dissenting vote, is based on Resolution 06-04-2010 by the Los Angeles County and Beverly Hills bar associations. There is no chapter number yet, presumably due to the intervening holiday weekend, but the signing is noted on the Governor's web site.

Judges Seek Less "Devastating" Budget Second Time Around

2011-06-25T08:56:00.000-07:00

Governor Jerry Brown's nearly-instantaneous veto of the budget sent to him by the Democratic majorities in both legislative houses last week inspired a host of disparate emotions thoughout the state. For the state's courts, however, there was just one emotion: Relief.

The day after the veto, Chief Justice Tani Cantil-Sakauye issued a press release praising the governor's action, which she said "will provide us with an opportunity to continue negotiating with the Legislature and demonstrate why the courts would be devastated by additional cuts in funding."

Last Wednesday (June 22), 122 judges and court executives from throughout the state (6 administrative presiding justices of the California Courts of Appeal and the 58 presiding judges and 58 court executive officers of the California trial courts) sent a letter to the Governor and members of the Legislature expressing their “strong and unified opposition” to legislative efforts that would "further reduce the judicial branch budget and erode the civil rights of Californians." The press release announcing the sending of the letter referred to the unified action as unprecedented - and perhaps particularly so in this year, which has been marked by so much division between different organizations of judges, groups within those organizations, and of course the AOC, over trial court funding issues and the dead-until-January AB 1208 (see earlier post).

So far the letter has generated an article in the Metropolitan News-Enterprise legal newspaper, and a detailed press release by the San Francisco Superior Court appears to have generated a much more thorough San Francisco-specific article in the San Fracisco Examiner. To this point, however, there has been little additional news coverage that this blogger has been able to identify.

Of course, the fact that the Governor vetoed the first budget as being out of balance and too reliant on over-optimistic revenue projections, legally suspect funding increases, creative accounting, and the other usual suspects, does not bode well for increased funding for the courts - or any other governmental agency or program.

Quick Update: Governor Vetoes Budget

2011-06-16T12:17:00.000-07:00

Governor Edmund G. "Jerry" Brown, Jr. has vetoed the majority vote state budget package sent to him by the Legislature less than 24 hours ago.The Governor made the announcement in a YouTube video and veto message released simultaneously, in which he stated that he will not sign Senate Bill 69 and Assembly Bill 98, which together comprise the state budget passed by the Legislature on June 15, 2011.

While praising Legislative for their "valiant efforts to address California’s budget crisis by enacting $11 billion in painful cuts and other solutions" and commending them for trying to "balance the budget in the absence of Republican cooperation," Brown said the budget sent to him was not a "balanced solution" because it continues big deficits for years to come, adds billions of dollars of new debt, and is based in part on "legally questionable maneuvers, costly borrowing and unrealistic savings." He also said the budget is "not financeable and therefore will not allow us to meet our obligations as they occur."

Brown's veto raises several questions beyond the obvious one of "what next?" One question is whether by sending Brown the budget on time, the Legislature met its obligation under Proposition 25, and therefore is no longer at risk of losing pay and per diem as the struggle to come up with a workable state spending plan continues. The answer may lie with state Controller John Chiang, who had not had the opportunity to review the budget package to determine whether or not it reached the "balanced" threshold before Brown issued his veto.

Presumably, Brown will continue his efforts to try to convince legislative Republicans to provide the votes necessary to hold a special election to consider extending recently expired tax increases - and possibly to consider Republican-backed proposals relating to public pension reform and spending caps - as part of what the Governor has proposed as a "balanced budget solution" since taking office.

Legislature Sends On-Time Budget to Governor - Courts Take $150 million Added Hit

2011-06-16T07:08:00.000-07:00

The Legislature achieved its objective of sending Governor Jerry Brown a theoretically balanced state budget by the Constitutional deadline yesterday (Wednesday, June 15), though the product is not one anyone appeared particularly pleased with - least of all the state's courts, which saw their budget slashed by an additional $150 million over the $200 cut already made in March.

Operating with the resolve and efficiency of one who has a distasteful but necessary job to do, the Democratic majorities in both legislative houses rolled through the proposed budget bill (AB 98) that had just been created via amendment the day before, along with several "trailer" bills needed to make the statutory changes necessary for the changes reflected in the Budget bill to take effect. Many of the changes involved creative mechanisms for increasing revenues via majority vote, rather than the 2/3 vote required by the state Constitution to increase taxes or fees, which required Republican support to achieve. Needless to say, several of the changes - in particular Senate President pro Tem Darrell Steinberg's SBX1 23 (i.e., SB 23 in the first Special Session), which would allow counties, school districts, community college districts and county boards of education to raise a variety of local taxes with voter approval - likely will be challenged in court.

The majority vote budget was the first since 1933, and came as the result of Proposition 25 on last November's ballot, which reduced the margin required to pass a budget from 2/3. The oft-referenced provision of that proposition that would permanently forfeit lawmaker salaries and expenses every day the budget was late may or may not have played a role in the Legislature's haste to approve; it's quite likely that the lawmakers who had long championed the majority-vote budget felt compelled to make it work on its maiden voyage. Capitol historians note that this was only the second time in the past 25 years that the Legislature has met the June 15 constitutional deadline to send a budget bill to the governor.

The day before the vote, Chief Justice Tani Cantil-Sakauye issued a statement decrying the proposed action, calling the budget proposal "devastating and crippling to the judicial branch and to the public it serves. . . With these cuts courts cannot provide these fundamental services or protect the rights of Californians. . . By marginalizing the courts, California strikes a blow against justice." In May, Gov. Jerry Brown's finance department said this second round of cuts likely would lead to court closures statewide twice a month.

It's not yet known if state Controller John Chiang, who has the final word on such matters, will certify that the budget approved by the Legislature is indeed balanced. Nor is it absolutely certain that Governor Jerry Brown will sign the package (he has 12 days to do so, otherwise it becomes law without his signature). Brown has been trying to work out a compromise with legislative Republicans to provide the votes needed to place a series of tax increases - or, more properly, an extension of recently-expired tax increases - before the voters at a special election, possibly in combination with Republican-sought proposals relating to such things as pension reform. Those efforts have been unsuccessful to date, however, and the passage of the majority-vote budget may remove the pressure to hold further negotiations - though there is nothing preventing a tax/fee-related backfill solution at any time if the votes can be found.

AB 1208 On Shelf Until January

2011-06-10T12:37:00.000-07:00

AB 1208, Assembly Majority Leader Charles Calderon's controversial bill to strip the Judicial Council of virtually all its authority over trial court funding and vest it instead with the local courts, was not one of the bills approved by the Assembly prior to last Friday's (June 3) deadline for bills to clear their house of origin. The bill thus becomes a "two-year bill," ineligible for further consideration (absent some "they just won't happen" rule waivers requiring a 2/3 vote of the house) until next January (2012).

In one sense, the "parking" of AB 1208 should not have come as a surprise. After all, Assemblymember Calderon had stated several months back that he proposed to do just that - park the bill on the Assembly Floor as a two-year bill - to give the warring judges, Judicial Council and various lawyer groups time to work things out.

On the other hand, pretty much nothing else about the bill had gone as most legislative court-watchers expected. Many folks fully expected Assemblymember Calderon to at least push the bill out of the Assembly and over to the Senate, where it could still potentially move forward during the current year (at least until mid-July) without running up against a deadline, thereby keeping up the pressure to negotiate. Moving the bill to the Senate would also eliminate the potential problem of running into a potential deadline issue next January, when all two-year bills have to clear their house of origin by the end of the month.

With all the strategic reasons seeming to line up in favor of at least moving AB 1208 to the Senate - and after all the effort and alleged intrigue involved in having the bill substantially amended in Appropriations Committee and bringing it to the Floor over the outraged cries of the bill's opponents (see earlier post), it was a big surprise to many that absolutely nothing happened as the week drew to a close. Calderon simply passed whenever an opportunity came to vote on the bill, until eventually the opportunities were gone and the bill still remained on file - where it now will stay until it is moved to the Inactive File, there to remain until next January.

So why wasn't the bill brought up? Opponents of AB 1208 say that the author didn't have the 41 votes needed to get the bill to the Senate. The author disputes that contention, however, and given the numerical dominance of Southern California (and particularly LA) lawmakers in the Assembly, it's a very close call at least. More likely, the inter-party dispute that was taking place at the time between Assembly Republicans and Democrats over the former's right (or lack thereof) to caucus (see earlier post) added enough uncertainty to the issue to make delaying the vote on AB 1208 the wisest choice, since Republican votes clearly were needed to move the bill forward.

Whatever the case, even though AB 1208 itself is off the radar screen for the time being, the issues brought to the forefront by the bill remain, and will continue to percolate during the ongoing budget debate and beyond.

CCBA Bills Clear Senate Judiciary Committee

2011-06-09T15:27:00.000-07:00

The second-house phase of the legislative process began this week, as Senate policy committees started serious consideration of Assembly bills and vice-versa. Three bills sponsored by the Conference of California Bar Associations (CCBA) were among the bills first to be considered by the Senate Judiciary Committee at its June 7 hearing, and all three were approved and passed to the Senate Floor, where they should be heard next week.

Only one of the three measures generated any controversy: AB 433, by Assembly Member Bonnie Lowenthal (D-Long Beach), which would remove unnecessary impediments in the legal processes for obtaining a judgment relating to change of gender and, for California citizens, a revised birth certificate reflecting that change. The bill, which is co-sponsored by the Transgender Law Center, Equality California and the CCBA (Resolution 04-12-2010, by the Bay Area Lawyers for Individual Freedom), was approved on a vote of 4-1.

AB 454 by Assemblymember Jim Silva (based on Resolution 05-07-2009 by the Women Lawyers of Sacramento), which would require that the party protected by a civil protective or restraining order be given prior notice, as specified, of any hearing to modify or terminate the order by personal service, was approved by the committee on a unanimous 5-0 vote.

And AB 354, also by Assemblymember Silva, was approved on the committee's Consent Calendar. AB 354 (based on Resolution 06-04-2010 by the Los Angeles County and Beverly Hills bar associations), would provide that when a person has taken, concealed, or disposed of the real or personal property of a conservatee, minor, estate of a decedent, or trust by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, the person is liable for twice the value of the property recovered in a conservatorship, guardianship, estate, or trust proceeding.

All three measures are currently on track to obtain all necessary votes and be sent to Governor Brown for signature before the Legislature is scheduled to break for its summer recess in July.

Host of CCBA Bills Approved by Assembly

2011-06-06T13:16:00.000-07:00

Well, "host" may qualify as headline hyperbole. But the past week did see five bills sponsored, co-sponsored or formally supported by the Conference of California Bar Associations approved by the California state Assembly and sent to the Senate on their course to hopeful enactment. Another CCBA-supported bill was approved by the Senate and sent to the Assembly.

On Tuesday, May 31, the house approved the CCBA-sponsored AB 1396 by the Assembly Committee on Labor and Employment passed on a 51-28 vote. AB 1396 would restore protections to Californians working on a commission basis for out-of-state companies that were declared unconstitutional by a federal court by requiring all commission contracts, in-state and out, to be in writing. Despite the partisan vote, recent amendments to AB 1396 removed the opposition of the California Chamber of Commerce and Civil Justice Association of California (CJAC), greatly improving the chances the measure, which was vetoed last year by then-Governor Schwarzenegger as SB 1370 (Ducheny), will be signed into law this time around. AB 1396 was adopted by the Conference as Resolution 04-01-2009 by the Beverly Hills Bar Association.

On Wednesday, June 1, the Assembly approved AB 1147 by Assembly Member Mariko Yamada (Resolution 03-04-2010 by the Women Lawyers of Sacramento) and AB 545 by Assembly Speaker John Pérez (Resolution 06-05-2009 by 10 individuals), both described in detail in an earlier post, on identical votes of 78-0.

On Thursday, the Assembly gave thumb's up to AB 308 by Assembly Member Tom Ammiano, which seeks to develop statewide guidelines to be used by law enforcement to improve the process by which eyewitness identification is established. The measure, endorsed by the CCBA as Resolution 01-13-2010 by the Los Angeles County Bar Association, got caught in a bit of political by-play and initially was approved 41-1 by as house consisting only of Democratic members due to an inter-party squabble over the right (or denial of the privilege) of the Assembly Republicans to hold a caucus of their members. The final vote on the bill, the subject of an earlier post, was 45-30.

The final CCBA-supported bill approved by the Assembly last week was also the reason behind the aforementioned battle over the right to caucus: AB 52 by Assembly Member Mike Feuer, which would require pre-approval of health insurance rate increases (see earlier post), was ultimately approved by the Assembly on a vote of 45-28. The bill is supported by the CCBA, as consistent with provisions of CCBA Resolution 02-02-2010 developed by the Beverly Hills Bar Association.

Meanwhile the Senate approved SB 161 by Senator Bob Huff on Thursday on a vote of 32-4. The bill, which is supported by the CCBA as consistent with Resolution 04-03-2010 by the Alameda County Bar Association, would make it easier for non-medical school personnel to administer specified anti-epilepsy medication in emergency situations.

The approval of the six measures by the two houses keeps fourteen of the 22 bills on the CCBA's 2011 Legislative Program on track for enactment this year going into the next phase of the legislative process: Policy committee hearings in the second house.

Invitations to Comment: Code of Judicial Ethics

2011-06-01T17:54:00.000-07:00

The Supreme Court Advisory Committee on the Code of Judicial Ethics is seeking public comment on numerous proposed amendments to the code. The proposed amendments have been posted to the California Courts web site.

The deadline to submit comments is September 1, 2011.

The greatest part of the proposed amendments arise from the 2007 revisions to the American Bar Association’s Model Code of Judicial Conduct. Additional proposed amendments are based on recommendations by the Commission for Impartial Courts (CIC), which was formed by then–Chief Justice Ronald M. George in 2007 to study and recommend ways to ensure judicial quality, impartiality, and accountability (including in candidates for judicial office), and which submitted its final report to the Judicial Council in December 2009. The remaining amendments have been proposed by the committee based on issues brought to the committee’s attention by other members of the judicial community.

The proposals out for comment are:

Comments may be submitted online (see links above), written on this forms for the individual proposals, or prepared in a letter format. Comments may be submitted online, or via email (within the message or as an attachment), mail, or fax. The relevant addresses/numbers are:

Email: invitations@jud.ca.gov
Mail: Ms. Camilla Kieliger
455 Golden Gate Avenue, 5th Floor
San Francisco, CA 94102
Fax: (415) 865-7664, Attn: Camilla Kieliger

More background on the whole "invitation to comment" process can be found here.

CCBA Bills Overcome Suspense

2011-05-31T03:23:00.000-07:00

The Assembly Appropriations Committee was good to CCBA-sponsored and supported legislation last Friday (5/27), approving all four measures that had been held on the committee's Suspense file.

Two of the CCBA-sponsored bills were approved by unanimous 17-0 votes of the committee:

AB 545 by Assembly Speaker John Pérez, which would amend Penal Code §273.5 to extend the protections the law provides to victims of felony domestic violence to persons in a dating or engagement relationship. The bill is based on CCBA Resolution 06-05-2009.

AB 1147 by Assembly Member Mariko Yamada, which would require social workers to include in the reports they are already required to prepare on teen parents in foster care information on what age and developmental-appropriate services the minor received, consistent with the Teen Parents in Foster Care Act (SB 1178 by Senator and former CCBA delegate Sheila James Kuehl, of 2004). The bill is based on CCBA Resolution 03-04-2010.

A third bill co-sponsored by the CCBA, AB 308 by Assembly Member Tom Ammiano,was approved with amendments on a vote of 11-6. As amended, the bill would require the Department of Justice, in consultation with the Commission on Peace Officer Standards and Training, local law enforcement agencies, prosecutors, defense attorneys, and other legal experts, to develop guidelines for policies and procedures to ensure the reliability of eyewitness identifications by January 1, 2013, and to make a report on those guidelines - along with any needed implementing legislation - to the Legislature by July 1, 2013. AB 308 reflects the recommendations of the California Commission of the Fair Administration of Justice to address well-documented deficiencies in current eyewitness identification procedures which have too often led to innocent people being convicted and the guilty left free to commit other crimes. AB 308 - which also would allow expert testimony regarding the reliability of an eyewitness identification to be admitted at trial in a criminal action or specified juvenile court proceedings if the proponent of the evidence establishes relevancy and proper qualifications of the witness - is co-sponsored by the CCBA, based on CCBA Resolution 01-13-2010.

Finally, the Appropriations Committee approved, on a tight 9-7 vote, AB 52 by Assembly Member Mike Feuer, which would require health care service plans licensed by the Department of Managed Health Care and health insurers certificated by the California Department of Insurance, effective January 1, 2012, to apply for prior approval of proposed rate increases, under specified conditions, and imposes on regulators specific rate review criteria, timelines, and hearing requirements. The bill is supported by the CCBA, as consistent with provisions of CCBA Resolution 02-02-2010.

All bills referenced must be approved by the full Assembly by Friday (June 3), in order to stay on track for enactment this year.

New State Bar Governance Model Appears in SB 163

2011-05-31T02:06:00.000-07:00

Just over a week after the State Bar's "Governance in the Public Interest Task Force" issued its legislatively mandated report (including both majority and minority reports; see earlier post), Senate Judiciary Committee Chair Noreen Evans has amended her SB 163, this year's State Bar Fee Bill, to include a hybrid version of the two - with an added legislative twist.

In some respects, SB 163 now represents a clear Solomonic "splitting of the baby" between the majority and minority reports. Where the majority report sought to maintain the current 23-member board, with 12 of the 17 attorney members elected and a 17/6 ratio of attorneys to public members, and the minority report called for an all-appointed 15-member board with a 9/6 attorney/public member ratio, the SB 163 model calls for the board to be comprised of (after the terms of existing members expire, no later than 2014) 19 members (exactly midway between the two models), of which 13 will be attorneys and 6 non-attorney public members.
The 13 attorneys, in turn, will be comprised of six elected from new districts paralleling the existing Court of Appeal districts (a feature of the Majority Report); five appointed by the Supreme Court (a feature of both reports) and - the only completely new feature of the bill - two appointed by the Legislature, one each by the Speaker of the Assembly and the Senate Rules Committee. This addresses a point of legislative concern that appears to have been hanging around since the last time Jerry Brown was governor - the disparate appointing authority between the Governor (who has four public member appointments to the Board) and Legislature (which has two). Under SB 163, both the Governor and the Legislature would have the authority to appoint four board members - although the Governor's would all be non-attorney public members and the Legislature's would be split between non-attorney public members and attorneys. Presumably the Governor has been consulted with and signed off on this matter, since it was an argument over relative appointing authority long ago (back in 1976) that led then-Governor Brown to veto one of the original State Bar Fee Bills.

One thing both the majority and minority reports and SB 163 all agree on: The name of the Bar's governing body will be changed from "Board of Governors" to "Board of Trustees."

Other provisions of SB 163 would require the board to complete and implement a 5-year strategic plan, with attendant reporting requirement, and would reconstitute the Governance in the Public Interest Task Force in a way more consistent with the new composition of the board.

SB 163 is currently on the Senate Floor, awaiting the vote to send it to the Assembly for further deliberation. That vote will occur this week.

AB 1208 Clears Appropriations Committee; Floor Fight Likely?

2011-05-31T00:59:00.000-07:00

The Assembly Appropriations Committee was also kind to Assembly Majority Leader Charles Calderon's controversial court funding bill, AB 1208, on Friday, sending the bill to the Assembly Floor on a solid 14-1 vote and setting up what appears likely to be a very interesting floor battle on the bill this week.

The committee's vote came over over strong opposition from the Judicial Council, Commission on Access to Justice, Consumer Attorneys of California, California Defense Counsel, and others (see arguments pro and con in Assembly Floor analysis) - as well as over outraged allegations that the most recent amendments to the bill were inconsistent with the agreement that permitted the bill to be approved by the Assembly Judiciary Committee (see earlier post). The vote isn't really surprising, however, given the composition of the committee; not only is Assm. Calderon a member of the committee, but there is essentially no commonality with the membership of the Judiciary Committee (the only common member is Orange County Republican Don Wagner) and the Appropriations Committee membership is made up largely of lawmakers from Los Angeles (whose court strongly supports AB 1208) and Orange County.

The question is what happens next with the bill. Earlier in the year, Assm. Calderon suggested that he would be willing to move AB 1208 to the Assembly Floor and park it there until 2012, while the judges/courts supporting the bill and the measure's opponents (beginning with Chief Justice Tani Cantil-Sakauye) tried to work out their differences. At this point, however, it seems more likely that Assm. Calderon will seek to move the bill to the Senate, leaving open the possibility (or threat, depending on one's viewpoint) that it could be enacted this year if accommodation of some sort is not reached.

We'll know the answer to that question by this coming Friday (June 3), the legislative deadline for bills introduced in the current year to pass their house of origin.

State Bar (except for LAP Program) Gets Clean Bill of Health from Auditor

2011-05-26T18:26:00.000-07:00

You couldn't tell from the title of the report, but the, State Bar of California just received its most positive report card in years from the state Auditor.

Every two years, as part of the deal (SB 144 of 1999) that that brought the State Bar back to the land of the funded following then-Governor Pete Wilson's veto of the 1997 Fee Bill, the State Bar is required to undergo a performance audit of its operations by the Bureau of State Audits (see B&P Code §6145). Historically, these audits have found fault with several aspects of the Bar's operations - most often with its discipline system and cost containment efforts. The 2009 Report, for instance, ran a full 88 pages, in which the Auditor detailed faults found with the Bar's "disciplinary system, discipline costs, cost recovery efforts, probation office,and responses to internal and external reviews."

In contrast, the audit of the State Bar released Thursday (May 26) runs a scant 36 pages, and is focused completely on problems the Auditor found with the Lawyer Assistance Program maintained by the State Bar (per statutory requirement) to assist California attorneys impaired by abuse of alcohol or drugs, or by mental illness, so that they are able to practice law competently. In fact, going by the report's title alone ("State Bar of California: Its Lawyer Assistance Program Lacks Adequate Controls for Reporting on Participating Attorneys"), one wouldn't know what the Auditor looked at more than this one program, let alone conducted an exhaustive performance audit (which it, of course, did).

In summary, the Auditor found that the LAP has poor monitoring procedures for ensuring case managers appropriately send reports of participants' noncompliance to disciplinary bodies, does not adequately ensure that case managers treat all noncompliance issues consistently, and doesn't have a good quantifiable measure for determining success.

And even the problems the Auditor found with the Lawyer Assistance Program (or LAP) have to be considered in context, because the program itself was completely overhauled by the Board of Governors just slightly over a year ago in order to address a number of problems that the Bar itself had identified with the program. Those changes, outlined in the program's annual report, included the adoption of completely new rules governing the program, in conjunction with a split of the program into two tracks (a voluntary track and a "monitored" track for attorneys who needed to participate in and complete the program to comply with a condition of discipline), and an overhaul of what was once an arguably too-lenient financial aid program. So in many respects, the program reviewed by the Auditor was essentially a new program.

In addition to the full report, the information produced by the State Auditor includes a Fact Sheet, Highlights, and a Summary of the report.

AB 1208 Amendments Draw Objections from AOC

2011-05-20T05:03:00.000-07:00

Assembly Member Calderon

The battle over Trial Court Funding took an unexpected turn Wednesday (May 18), when Assembly Member Charles Calderon unexpectedly (at least to many) amended his AB 1208 to remove or revise a number of provisions of existing law relating to the Judicial Council's authority to allocate funding.

The amendments, which came into print Thursday morning, would delete the Judicial Council's current discretionary authority to allocate funding for trial court operations, and would instead generally require that the amount allocated to each trial court from the amount appropriated for trial court operations be equal to the pro rata share of the prior fiscal year's adjusted base budget. The amendments would also require the Judicial Council to allocate 100% of the funds appropriated for trial court operations according to each court's share of statewide operational funding, and would delete the Judicial Council's ultimate responsibility to adopt a budget, to allocate funding for the trial courts, and to authorize a trial court to carry unexpended funds over from one fiscal year to the next (unexpended funds would become the property of the court under the bill).

According to news accounts, the amendments have drawn strong objections from the Administrative Office of the Courts' Office of Governmental Affairs, who contend they breach the agreement reached with the members and chair of the Assembly Judiciary that enabled a much stripped-down version of AB 1208 to pass out of that committee (see earlier post). Calderon rejects the allegation, saying the bill "simply places the Legislature in the position where they are constitutionally required to be, and that is appropriation of funds."

AB 1208 is in the Assembly Appropriations Committee, where it is expected to be heard next week.

AB 1208 is sponsored by the Alliance of California Judges, which was formed in late 2009 to address what its members characterized as the "unprecedented financial crisis now facing our judicial branch." The bill was supported by a range of courts and judges statewide, and opposed by a varied coalition including the Judicial Council, Consumer Attorneys of California, California Defense Counsel, Civil Justice Association of California, Bar Association of San Francisco, and various other California courts and judges. A recent issue (see earlier post) concerning an alleged split over support for the bill by the membership of the California Judges Association (which has not taken a position) reportedly has been resolved.

State Bar "Governance in Public Interest Task Force" Issues Report

2011-05-17T16:40:00.000-07:00

The State Bar's "Governance in the Public Interest Task Force" issued its mandated report late last week. The final report was pretty much what everyone expected (see earlier blog post). The governance task force was legislatively mandated as part of the 2011 State Bar Fee Bill (AB 2764 by the Assembly Judiciary Committee) and is required to make recommendations “for enhancing and ensuring that public protection is the highest priority in the licensing, regulation and discipline of attorneys.” The mandate reflected concerns by some lawmakers over what they perceived as lawyer-friendly board actions, including a liability insurance disclosure requirement that opponents considered watered-down and a Find Legal Help feature on the State Bar's website that doesn’t permit searches by practice area.

The majority report calls for the appointment of three lawyers to the board of governors, the election of 12 from five bar districts, and a seat for a young lawyer representative. Some members could be reappointed, a new executive committee would be created and half of the board’s two regulatory committees would be public members.

The minority report (which was specifically authorized in the legislation mandating the task force and report) recommends paring the board down from 23 to 15 members — nine lawyers, six nonlawyers. The Supreme Court would oversee a committee that would screen applicants and appoint the members.

The task force recommendations were made to the Assembly and Senate Judiciary Committees, along with the Supreme Court, and will play a role in the Legislature's deliberations over this year's Bar Fee Bill, SB 163 by Senate Judiciary Committee Chair Noreen Evans (perhaps to the extent of one or the other recommendation being made a part of the bill).

Judicial Branch Budget Update from Chief Justice

2011-05-17T16:02:00.000-07:00

The following message from Chief Justice Tani Cantil-Sakauye (sent yesterday, Monday, May 16) was forwarded to members of the Bench-Bar Coalition earlier today. Links to the Department of Finance and Legislative Counsel web sites have been added for those who wish to delve deeper.

* * * * * * *

Chief Justice Cantil-Sakauye

"This morning, the Governor released his May revision for the 2011-2012 fiscal year budget. Although the budget shortfall was reduced by the increased revenues recently reported, the Governor stated that a $10.8 billion solution is still needed to erase the remaining $9.6 billion deficit and build a $1.2 billion reserve. The Governor’s “May Revise” continues to assume an extension of taxes, however, the higher revenues allowed for reduced tax extensions. Under the plan, there are no further reductions to the judicial branch budget, beyond the $200 million approved by the Legislature earlier this year. Specifically, the May Revise included the following items related to judicial branch funding:

AB 109: Criminal Justice Realignment. The Governor’s revised State Budget augments the judicial branch budget by $41.8 million to carry out the new court responsibility of hearing petitions for parole revocation under the Criminal Justice Alignment Act of 2011 (Stats. 2011, ch. 15). This amount reflects the Governor’s decision to narrow the court role and responsibility to that of making final revocation decisions only, rather than the broader responsibilities enacted in AB 109. Supervising agencies will have increased control and direction to manage discharge proceedings, custody credits, modification of terms and conditions of parole, and imposition of intermediate sanctions. Administrative Office of the Courts staff and the Judicial Council’s Working Group on Criminal Justice Realignment will be working with the Administration and other stakeholders to draft the trailer bill language to carry this out.

"Court Security. The amount of funding for sheriffs’ court security was increased from $485 million to $497.8 million. The increase includes new funding of $10.7 million reflecting an inflation factor of 2.2 percent. While we do not yet have updated fiscal year 2011-2012 security cost increase information, this inflation factor adjustment is meant to address the proposed court security costs in 2011-2012. The increased amount also reflects $2.5 million for additional security costs associated with the parole revocation hearing workload.

"On May 9, 2011, members of the Ad Hoc Court Security Realignment Working Group met with high level representatives of the administration and the Department of Finance, as well as representatives of the California State Sheriffs Association and the California State Association of Counties to discuss the Governor’s court security realignment proposal. Although there was broad agreement that the funding to be “realigned” from the judicial branch budget to the counties must be used to provide court security, one critical issue that still requires resolution is the obligation of counties to provide the historic levels of funding and service they have provided for court security in addition to the amounts provided by the judicial branch.

"Court-appointed Counsel. $2.6 million in additional funding is provided on a one-time basis in fiscal year 2010-2011 to address a projected shortfall in current year funding for court-appointed counsel in appellate proceedings.

"We will keep you apprised of developments as the budget process continues."

Tani Cantil-Sakauye
Chief Justice of California

Trial Court Funding Control Battle Heating Up

2011-05-17T10:30:00.000-07:00

The next phase in the battle over control of trial court funding in California is starting to take shape.

AB 1208 by Assembly Majority Leader Charles Calederon (D-Montebello), introduced as the Trial Court Rights Act of 2011, has been amended per the hearing-day agreement in the Assembly Judiciary Committee (see earlier blog post) to have the Legislature, as part of the court budgeting process, to identify the amount allocated "for programs of statewide concern" from the total funds appropriated for trial court operations, and would prohibit the withholding or expending any portion of the total funds appropriated for trial court operations by the Legislature for any statewide information technology or administrative infrastructure program that was not identified in the annual Budget Act, unless the Judicial Council, or its designee, first obtains the written approval of 66 2/3% of a proportional representation of all local trial courts.

AB 1208 is currently in the Assembly Appropriations Committee, where it is expected to be heard some time next week (no specific hearing has yet been set). The legislative deadline for bills to be reported out of the Appropriations Committee is next Friday, May 27.

The Hon. James Herman

In a related development, Santa Barbara Superior Court Judge James Herma - a former State Bar president and member of the California Judges Association’s Executive Board - has come under fire from several Los Angeles judges over a letter questioning the implications of a poll of CJA membership over AB 1208 and the underlying issue of AOC oversight of the state's courts.

The Los Angeles Metropolitan News-Enterprise legal newspaper reported last week that Herman had sent a letter to Chief Justice Tani Cantil-Sakauye that a poll of CJA's membership showing that a strong plurality supported the original version of AB 1208 and a substantial majority was dissatisfied with the Administrative Office of the Court's oversight of the judicial branch was skewed in favor a large Los Angeles County, and did not adequately represent the views of the members Herman represents in several coastal counties (Santa Barbara, Monterey, San Luis Obispo, Santa Cruz and Ventura), which Herman contends overwhelmingly support the AOC.Los Angeles members of the CJA Executive Committee objected not only to the letter, but also to the fact that it came on letterhead pulled together from the CJA website.

Herman's letter appears to have been in response to a letter from CJA President Keith Davis, a member of the San Bernardino Superior Court bench, which accompanied the transmittal of the survey results to the Chief Justice.

First Crop of Two-Year Bills

2011-05-14T09:13:00.000-07:00

Yesterday (Friday, May 13) marked an important milestone in the lives of many bills introduced in 2011. It's the day they begin an extended - and in many cases permanent - hibernation.

Specifically, today is the legislative deadline for bills to be passed out of policy committee in their house of origin - the day by which Assembly bills have to clear Assembly policy committees, and Senate bills clear Senate policy committees. Those bills that failed to meet the deadline are now "two-year bills"; they're not dead, but they are ineligible for further consideration until January of 2012, and thus are off the radar screen for the remainder of this year (absent major political fun and games, reserved only for special bills on special occasions). Five bills on this year's Conference of California Bar Associations Legislative Program fall into this category.

Of course, there are basically two kinds of "two-year bills." The first are those bills which are still truly active, but need work. These bills (which include all the CCBA two-year bills) will typically sit on the back burner until the legislative calendar clears (possibly in the Summer, more typically in the Fall, after all work is done on bills still working through the process in 2011). Then the sponsors (including their lobbyist) opponents and legislative staff will begin working out any issues with and developing amendments to the bills, so they will be well positioned for the "January sprint" in 2012, which requires the bills to make it though all house of origin hearings and votes in less than a month. Bills that don't make it die by operation of the state Constitution.

The other category of two-year bills are those which are really dead, but on procedural life support. These bills will either lie fallow until the end of next January, when the constitution will pull the plug on their existence. Or, in some instances, they may become effectively brand-new bills through the gut-and-amend process (i.e., the old subject matter is removed and new subject matter inserted). This practice is not all that common, because any new bill so created must still make it through its house of origin in less than a month next January, and therefore must be almost completely non-controversial.

For the time being, however, the two-year bills can rest quietly, while we turn our attention to other legislation and issues.

State Bar Fee Bill Approved on Procedural Vote; Much More to Come

2011-05-11T08:28:00.000-07:00

This year's bill (SB 163) to extend the State Bar of California's authority to collect the member fees it needs to function was unanimously approved Tuesday (May 10) by the Senate Judiciary Committee on what was clearly a procedural vote to meet legislative deadlines, pending the issuance of an important report by the Bar's "Governance in the Public Interest Task Force" and some potentially important actions by the State Bar's Board of Governors this coming Thursday and Friday (May 12 & 13) in San Francisco.

Sen. Noreen Evans

Although SB 163 itself merely extends for one year the "sunset" clause on the statute (B&P Code §6140) authorizing the Bar to collect the lion's share ($315 of $410) of the fees paid by lawyers to maintain the Bar and its programs, the presentation of the bill by its author, Senate Judiciary Committee Chair Noreen Evans, and the committee analysis of the bill both made it clear that many changes could be forthcoming before the measure is presented to Governor Brown for signature. In particular, Evans noted that SB 163 could well be amended to implement changes recommended by the Governance in the Public Interest Task Force established by the Bar pursuant to last year's Fee Bill, AB 2764 (Assembly Judiciary Committee).

The Governance in the Public Interest Task Force was created to address legislative concerns that the Bar's Board of Governor's, which currently consists of 17 lawyer members elected by the state's lawyers and 6 public members appointed by the Governor and Legislature, was placing the interests of the legal profession above public protection in some of its recent decisions (see committee analysis of SB 163 for more detailed explanation). The Task Force's initial report (another is due in three years, and one every three years thereafter) must be submitted to the Legislature on or before Sunday, May 15. At its final meeting on May 5, the Task Force voted to approve a governance model very similar to the status quo, with elected lawyers holding 13 of 16 board seats, three more lawyers appointed by the Supreme Court, and six public members. A minority report, recommending a smaller Board of Governors consisting of a slight majority of attorneys appointed by the Supreme Court and more public members, will also be included in the final report sent to the Legislature. The final report has not yet been released, but it is expected that the majority report will largely mirror this proposal, and the minority report this one.

Making things slightly more interesting, the Bar's Board of Governors will also be considering at it's Thursday/Friday meeting a controversial public protection-related proposal to post Consumer Alerts on the Profile Pages of attorneys who have been charged with the misappropriation of more than $25,000 in client funds. The public (almost exclusively attorney) comment on the proposal has been almost universally negative, to the effect that posting accusations before conviction amounts to a pre-judgment of guilt - even if over 97% of the accusations ultimately lead to disciplinary action. In light of the legislative displeasure with prior board actions on similar issues, the release of the Task Force report, and the long was the Bar's Fee Bill still has to go, there will be a lot of attention paid to the board's action.

Nominations Sought for 2011 Aranda Access to Justice Award

2011-05-10T16:53:00.000-07:00

The Hon. Benjamin Aranda

The California Commission on Access to Justice is seeking nominations of a California judge for the 2011 Benjamin Aranda III Access to Justice Award. Nominations are due by May 27, 2011. Nomination forms should be submitted to Chris Zupanovich, Staff, Commission on Access to Justice (see full address below).

First presented in 1999, the award, named for the founding chair of the Judicial Council’s Access and Fairness Advisory Committee, honors a judge or commissioner who has demonstrated a long-term commitment to improving access to our courts, and who has personally done significant work in improving access for low and moderate income Californians. The following are past recipients of the award:

1999 – Hon. Judith McConnell, San Diego Superior Court
2000 – Hon. Veronica S. McBeth, Los Angeles Superior Court
2001 – Hon. Charles Campbell, Ventura Superior Court
2002 – Hon. Donna J. Hitchens, San Francisco Superior Court
2003 – Hon. Kenneth M. Kawaichi, Alameda Superior Court
2004 – Hon. Earl Johnson, Jr., Court of Appeal, Second Appellate District
2005 – Hon. Aviva Bobb, Los Angeles Superior Court
2006 – Hon. Donna M. Petre, Yolo Superior Court
2007 – Hon. Kathleen E. O’Leary, Court of Appeal, Fourth Appellate District
2008 – Hon. Francisco Firmat, Orange County Superior Court
2009 – Hon. Gordon Baranco, Alameda County Superior Court
2010 – Hon. Laurie D. Zelon, Court of Appeal, Second Appellate District

The specific criteria for issuing the award are:

Dedication to improving access to our judicial system for low and moderate income Californians;
Commitment to increasing the involvement of volunteer attorneys in the representation of the indigent;
Successful establishment of a model system for providing assistance to self-represented litigants;
Successful establishment of a model cooperative effort with local legal services programs or bar associations designed to improve available representation for low or moderate income litigants; or
Other significant activities demonstrating a long-term commitment to improving the accessibility of our judicial system for all Californians, regardless of income.

The California Commission on Access to Justice will select the award recipient in consultation with the Judicial Council, the State Bar and the California Judges Association, and will present the award at the Fall of 2011.

Mailed nominations are preferred. A copy of the nomination form and accompanying materials (loose pages, no staples) should be submitted (by May 27, 2011) to Chris Zupanovich, Staff, Commission on Access to Justice, State Bar of California, 180 Howard Street, San Francisco, CA 94105-1639. (415) 538-2534. FAX: (415) 538-2524. See further information on the State Bar and Judicial Council web sites.

Judicial Council Invitations to Comment

2011-05-07T11:54:00.000-07:00

The state's Judicial Council has issued a flurry of Invitations to Comment on Proposed Rules, Forms, Standards, and Legislation developed by the Council's various advisory committees. With only a couple of exceptions, comments on all the proposals are due by June 20, 2011. The exception is a recirculation of a proposal relating to Statewide Uniform Fees for Telephone Appearances, comments on which are due by May 12.

The linked PDF document provides a summary of all the proposals and contains direct links to each individual proposal. A description of the legislative proposals (with links) follows.

Proposed Clean-Up Legislation on the Discovery of Electronically Stored Information (Leg 11-01):This is a proposal for Judicial Council–sponsored legislation to amend California’s Civil Discovery Act. The Judicial Council, along with the Consumer Attorneys of California and California Defense Counsel, sponsored jointly sponsored the prior legislation that resulted in the Electronic Discovery Act. (AB 5 of 2009). The Judicial Council's Civil and Small Claims Advisory Committee proposes that the council consider sponsoring legislation to address certain gaps and omissions in the e-discovery legislation that was enacted. This clean-up legislation is proposed for introduction and enactment in 2012, and would become effective January 1, 2013.

Probate: Notice to Creditors in Decedents’ Estates (Leg11-02): Advice to creditors of decedents’ estates in two Judicial Council form notices is incorrect under some circumstances and potentially misleading. However, statutes mandate the incorrect advice given in the forms. The Judicial Council's Probate and Mental Health Advisory Committee proposes to resolve this problem by recommending Judicial Council sponsorship of legislation to amend the statutes. This clean-up legislation is proposed for introduction and enactment in 2012, and would become effective January 1, 2013.

Two CCBA-Sponsored Bills Clear Assembly

2011-05-06T12:11:00.000-07:00

Two bills co-sponsored by the Conference of California Bar Associations, AB 433 (Lowenthal) and AB 699 (Wagner) cleared the midway point in the legislative process yesterday (Thursday, May 5) by winning approval from their house of origin, the Assembly. The bills now head for the Senate for further consideration.

AB 433, by Assembly Member Bonnie Lowenthal (D-Long Beach), simplifies the existing process by which a transgender person obtains appropriate identification documents by bringing state law into conformity with the medical standard applied by the U.S. state department and current medical understanding of gender transition. The bill, which is co-sponsored by the Transgender Law Center, Equality California and the CCBA (Resolution 04-12-2010), was approved on a vote of 52-22.

AB 699, by Assembly Judiciary Committee Vice-Chair Don Wagner (R-Irvine) would allow an owner of real property to pass the property simply and directly to a beneficiary on the owner’s death without probate by means of a recorded Revocable Transfer on Death Deed (RTODD). Thirteen states have previously enacted legislation authorizing a RTODD, going back 22 years, and the National Conference of Commissioners on Uniform State Laws (NCCUSL), the body which develops the uniform acts adopted across the nation, has developed a Uniform Real Property Transfer on Death Act based on RTODD’s, which it encourages all states without RTODD legislation to adopt. AB 699 is co-sponsored by California Communities United Institute and the CCBA (Resolution 12-06-2009). It was approved on a vote of 67-11.

Stripped Down AB 1208 Advances

2011-05-05T17:10:00.000-07:00

A heavily revised version - so heavily revised that it currently only exists in concept - of AB 1208 by Assembly Majority Leader Charles Calderon was narrowly approved Tuesday (May 3) by the Assembly Judiciary Committee after an extended, often passionate hearing. Once the agreed-upon amendments are drafted, the bill will be sent to the Assembly Appropriations Committee for further hearing.

AB 1208 is the self-titled "Trial Court Rights Act of 2011" sponsored by the Alliance of California Judges, which as introduced would have substantially altered governance of California's Judicial branch of government by transferring new authority to local courts and away from the Judicial Council and Administrative Office of the Courts. The bill was the subject to two presentations to the attendees at the CCBA "Legislative Day" in Sacramento in March (one by Assemblymember Calderon and one by AOC Director of Governmental Affairs Curt Child). The bill was supported by a range of courts and judges statewide, and opposed by a varied coalition including the Judicial Council, Consumer Attorneys of California, California Defense Counsel, Civil Justice Association of California, Bar Association of San Francisco, and various other California courts and judges.

The proposed amendments (in descriptive form only) that ultimately became the basis for the revised bill apparently were presented to Assembly Judiciary Committee Chair Mike Feuer and committee staff the day before the hearing, and are described at the very end (just before the listed support and opposition) of the Assembly Judiciary Committee analysis of the bill. Only the first and third of the proposed amendments were accepted by the committee (and the third amendment revised to reduce the percentage approval needed from 75% to 67%), so the new bill should contain essentially the following provisions:

Clarify that, based on information submitted in the Governor's proposed budget, the Legislature shall continue to specify, in each annual Budget Act, funding amounts for programs of statewide concern to come from all funds appropriated by the Legislature for trial court operations prior to allocating funds to each local trial court.
Allow Judicial Council and/or its designee to withhold portions of all funds appropriated by the Legislature for trial court operations for statewide information technology and administrative infrastructure expenses only after obtaining written approval from 67% of a proportional representation of all local trial courts, if such programs were not identified in the annual Budget Act.

The consensus opinion is that the amendments were taken and the bill approved in order to keep it moving through the process while dialogue continues concerning the issues (principally relating to court funding, the CCMS system, and the size of the AOC) addressed by the bill.

See related column by Sacramento Bee columnist Dan Walters, story from the Metropolitan News-Enterprise, related blog post (concerning one legislator's response to a comment made by Assemblymember Calderon) from the L.A. Times, and more recent (5/6) story from Sacramento Bee regarding further fallout over comment made about the Chief Justice.

New Rules of Professional Conduct out for Public Comment

2009-07-23T10:53:00.000-07:00

The State Bar of California's Board of Governors, through its Committee on Regulation, Admissions & Discipline Oversight (RAD), is inviting public comment on eight new or amended Rules of Professional Conduct (RPC) developed by the Commission for the Revision of the Rules of Professional Conduct ("Rules Revision Commission").

The official Notice of Public Comment and the Discussion Draft of the proposed changes is at: http://calbar.ca.gov/state/calbar/calbar_generic.jsp?cid=10145&n=96067

The comment deadline is October 23, 2009. Comments may be submitted by mail, email, or by completing an online form.

This is the fourth set of rules changes proposed by the commission, and addresses issues of trial publicity, lawyers as witnesses, membership in legal services organizations, law reform activities affecting client interests, third party payors, aggregate settlements, and safekeeping/handling the funds and property of clients (among others).

A public hearing for this fourth public comment group is scheduled to be held during the 2009 State Bar Annual Meeting in San Diego on September 12, 2009 from 9:30 am to 12:30 pm at the Manchester Grand Hyatt in room Annie A. If you would like to testify and/or present written materials at the public hearing, contact: Audrey Hollins in the Bar's Office of Professional Competence (audrey.hollins@calbar.ca.gov, (415) 538‐2167) no later than Friday, September 4, 2009.

Transfer on Death Deeds Bill Dies Again

2009-07-18T08:18:00.000-07:00

As expected (see earlier post), the Senate Judiciary Committee again rejected this year's installment (AB 724) in Assembly Member Chuck DeVore's multi-year campaign to create Transfer on Death Deeds (TODD, otherwise know as "Beneficiary Deeds") in California. But it's getting much closer.

Last year, when the committee was comprised entirely of lawyers, DeVore's predecessor bill (AB 250) received only one vote on the five-member panel in the face of a killer committee analysis (pretty much replicated this year) highlighting concerns that TODD could be tools for elder financial abuse and would undoubtedly increase litigation. This year, the AB 724 failed by a narrow - and interestingly nonpartisan - 2-3 margin. Conservative Orange County Republican Mimi Walters and liberal San Francisco Democrat Mark Leno voted for the bill, while the committee's two remaining lawyers, committee chair Ellen Corbett (D-San Leandro) and vice chair Tom Harman (R-Huntington Beach) - both of whom practiced T&E law in their pre-Legislature professional lives - were joined by non-lawyer Dean Florez in opposing.

Committee members extended DeVore the traditional courtesy of unanimously reconsidering the vote on the bill, so DeVore will have one more shot next year before he's termed out of the Assembly (he's running for the U.S. Senate seat currently held by Barbara Boxer). Unless he can convince another committee member (presumably Florez) to change his mind, however, it will be up to some one else to pick up the TODD issue for the next session.

New eDiscovery Statute Takes Immediate Effect

2009-07-04T09:09:00.000-07:00

Litigators take note: As of June 29, there is now a new electronic discovery statute in California with the signing of AB 5 by Assembly Member Noreen Evans. As an urgency measure, the bill took effect immediately upon the Governor's signature.

In a rare (and probably unintentional) symmetry, AB 5 was enacted as Chapter 5, Statutes of 2009.

The changes made by the bill should have taken effect last January 1, but were delayed when last year's bill (AB 926 of 2008) received one of Governor Schwarzenegger's hundreds of generic "there's a budget crisis and this bill isn't important enough to spend time on" veto messages (Note: that's a paraphrase, not a quote).

The new provisions were developed by the Judicial Council's Civil and Small Claims Advisory Committee, working closely with the plaintiffs' (Consumer Attorneys of California) and defense (California Defense Counsel) bars, all of which are listed as co-sponsors of both bills.

Among other things, AB 5:

Adds new definitions to the Civil Discovery Act
Specifically provides that the scope of discovery includes electronically stored information (ESI);
Allows propounding parties to specify the form of production for ESI;
Enacts new provisions governing responses to demands for ESI;
Enacts provisions governing protective orders against the discovery of ESI and motions to compel production;
Enacts specific provisions regarding claims of work product or privilege;
Adds a "safe harbor" provisions against sanctions to selected statutes;
Does not include a "meet and confer" requirement regarding the propounding of electronic discovery.

Probate A/C Privilege Clarification Bill on Way to Governor

2009-06-17T06:05:00.000-07:00

AB 1163 by Assembly Judiciary Committee Vice-Chair Van Tran, the CLRC-sponsored cleanup/clarification bill relating to the survival of the attorney/client privilege after the death of the client in probate matters, has passed the Senate on the consent calendar and is now in enrollment, the ministerial process of preparing the bill for transmission to the governor for signature. The bill should reach Governor Schwarzenegger's desk by the end of the week.

AB 1163 is follow-up legislation to Assembly Member Tran's AB 403 of 2007, a bill sponsored by the Trusts & Estates Section Executive Committee of the State Bar (TEXCOMM, T&E-2007-04), which provided for reestablishment of the attorney-client privilege when subsequent estate administration was required following the discharge of a personal representative, and further directed the CLRC to study whether the privilege should continue after death in all cases, civil and criminal. The commission recommend ed against expansion of the privilege, but proposed cleanup and clarification to the new probate application, including making it inapplicable to non-probate transfers.

Courts Budget Deal Struck?

2009-06-16T18:30:00.000-07:00

The state's courts reportedly have come up with a proposal to address the $393 million in budget cuts they are scheduled to endure in the next fiscal year. According to news accounts, the Administrative Office of the Courts, with yeoman's assistance from Assembly Member Mike Feuer (D-Los Angeles), chair of the Assembly Judiciary Committee, have reached an accord with legislative budget conferees to:

Close courthouses one day a month ($102 million);
Tap into funds earmarked for the new state computer system (CCMS), though the courts - though the AOC reportedly is authorized to trim elsewhere to reduce that amount ($102 million);
Tap into court construction and maintenance funds - with the apparent understanding that construction on projects already underway will not be affected ($25 million);
Raise civil filing fees $5 ($6-7 million);
Raise criminal fines and fees by $10 ($40 million);
Make a one-time only cut in statutory appropriation limit ($32 million);\Taken from trial court reserves ($70) million;
Redirect for for two years the funds raised by a $10 increase on certain fees proposed under Feuer's bill (AB 590) to create a "civil Gideon" pilot project under which free court-appointed counsel would be provided to low-income people in cases where basic human needs, such as shelter, sustenance, safety, health or child custody are at stake ($11 million).

The reported deal is the product of weeks of intense lobbying and debate. Many of the proposed elements of the deal cannot be implemented without statutory changes, which likely will appear in a budget "trailer" bill or bills.

Legislation - Sister-State PR Affidavit Transfer Bill Hits Snag

2009-06-16T11:39:00.000-07:00

Just when it looked like things were moving smoothly for AB 355 (Ammiano), the Trusts & Estates Section Executive Committee's (TEXCOMM's) bill to allow a sister-state Personal Representative to collect any amount of a decedent's personal property located in California via affidavit procedure has stalled in the face of late opposition and now appears to be a two-year bill.

The bill appears to be caught between the Association of Public Guardians and Public Administrators, who sought and obtained an amendment to the bill in the Assembly exempting them from any obligation to administer the decedent's estate or to petition for administration of the estate when presented with a proper sister-state affidavit, the staff of the Senate Judiciary Committee, which sees the exemption as too broad.

AB 355 passed the Assembly on the Consent Calendar, but is not likely to move further until this conflict is resolved. Unless something can be worked out before the July 10 deadline for policy committees to hear and report legislation, it's likely the bill will not move further until some time in 2010.

Legislation - Second Big Test for Sister-State PR Affidavit Transfer Bill

2009-06-12T13:50:00.000-07:00

Legislation (AB 355 - Ammiano) sponsored by the Trusts & Estates Section Executive Committee (TEXCOMM) to allow a sister-state Personal Representative to collect any amount of a decedent's personal property located in California via affidavit procedure (rather than filing an ancillary probate) is scheduled to face its second important test on Tuesday, June 16, before the Senate Judiciary Committee.

The bill passed the Assembly on the Consent Calendar and, assuming that the most recent (6/9/09) amendments were taken at the behest of Senate Judiciary Committee staff, looks to be moving smoothly through the process.

Current law permits sister-state PR's to utilize California's simplified affidavit procedure (Probate Code section 13100 et seq.) for property transfers below the $100,000 threshhold, but requires them to initiate a second, ancillary probate proceeding in California if the property of a non-California decedent exceeds that amount. TEXCOMM notes in its legislative proposal, T&E-2009-08, that such proceedings "are costly, time-consuming, and can unnecessarily delay distribution of the estate."

The new procedure would only apply where the decedent did not own real property in California, and imposes specific procedural requirements and safeguards.

Legislation: Senate Judiciary Committee Approves A/C Privilege Clean-up Bill

2009-06-10T11:00:00.000-07:00

Bills approved by the Senate Judiciary Commitee yesterday (6/9/09):

AB 1163 (Tran) - CLRC-sponsored cleanup/clarification bill relating to the survival of the attorney/client privilege after the death of the client in probate matters. Substantially amended from bill introduced pursuant to CLRC final recommendation, but now headed for Senate Consent Calendar.
AB 442 (Arambula) - Provides that a notary public may reasonably rely on a Matricula consular issued by the government of the United States of Mexico as proper identification to prove the identity of an individual who executes a written instrument. Approved by committee on 3-2, partisan vote, following similar vote on Assembly floor, so Republicans may push for veto.

The hearing on AB 898 (Lieu), another controversial notary bill sponsored by the Secretary of State (SOS), which would provide SOS with the discretion to refuse to perform a service or filing that is unlawful, prohibits the use of a subscribing witness when establishing a power of attorney, and eliminates the requirement for notaries public, other than those who work for financial institutions, to perform protests, was delayed for two weeks at the author's request.

Case Law: Handwritten Notation Amendment Not Part of Original Trust, Entitled to Safe Harbor

2009-06-10T04:43:00.000-07:00

Challenge to handwritten notations on the trust instrument was not seeking an interpretation but invalidity of an amendment, and therefore not protected by "safe harbor" provisions on that theory. However, the “amendment” by handwritten notations was not part of the original trust agreement and thus a challenge to its validity is not a contest under section 21305(a)(3). Cory v. Toscano, F055231, 5th District Court of Appeal, 6/8/09. Cite as 2009 SOS 3530.

Beneficiary Deeds Legislation Passes Assembly - Again

2009-06-08T20:21:00.000-07:00

To no one's surpise, AB 724, Irvine Assemblyman Chuck DeVore's third attempt to establish Revocable Transfer on Death Deeds (aka "Beneficiary Deeds") in California, has passed the state Assembly yet again. The 79-0 vote on June 2 might have been a bit surprising, but not much.

The real question whether the bill can clear the state Senate.

AB 724 would establish, until January 1, 2015, a formal non-probate method for conveying real property (with or without life estate) upon death through a "revocable transfer upon death deed" (RTDD). Such transfers actually have been authorized in California since 1914 (Tennant v. John Tennant Memorial Home, 167 Cal. 570), but they are virtually never used, probably because virtually no one is aware of them. By providing mandatory forms to use (and undoubtedly to be spread far and wide via legal self-help web sites, blogs, etc.), AB 724 clearly would change all that.

DeVore's first bill to create RTDD’s in California, AB 12 of 2005, stalled in the face of strong opposition from a number of sources and was converted to a bill to require a study of the issue by the California Law Revision Commission, which recommended that such deeds be authorized for use. DeVore’s second bill, AB 250 of 2007, easily passed the Assembly, but ran into strong opposition from committee members, staff, the California Land Title Association, the California Judges Association, in the Senate Judiciary Committee and failed passage. The arguments against the bill are well summarized in the Senate Judiciary Committee analysis.

Although AB 724 hardly differs at all from its predecessor and the same opposition seems to be lined up against the bill, the membership of the Senate Judiciary Committee has changed substantially from the prior session, which DeVore hopes will produce a different outcome.