CALIFORNIA COURTS IN TRANSITION

 

We frequently have presentations in which we learn something about the work of the presenter. Let me tell you about the SYSTEM in which I do a lot of my work.

I am talking about the third and least understood branch of our governments - the courts.

The early cinematic dramatizations of court proceedings were displaced by modern day television and movie misrepresentations which pale in comparison to the distorted realism of Court TV and live real-time coverage of extreme cases.

Some future social anthropologist will marvel at a legal system in which Johnnie Cochran and Marcia Clark inherited the mantle of Clarence Darrow.  Though I will not get into it today, the role of lawyers in the legal system and in our society is in dramatic transition.

It is commonplace that the worst of times often fall just before the best of times, and that may be true for the courts, in California, at least.

In truth, it is really difficult to predict what the future holds for our current legal system.  But, like any other lawyer, I have some opinions based on my study and twenty years of practice, and their merit will depend on future circumstances. 

You can (and will) be the judge here - and I can pontificate about a subject I truly love and hold in the most heartfelt respect - access to justice and our evolving system for obtaining it.

 

ACCESS TO JUSTICE

Access to justice is a fundamental and essential right in a democratic society.  You may be surprised to know that many industrial democracies, other than the USA, already guarantee people free legal representation in civil litigation.

Of course, since the 1960's case of Gideon v Wainright, the right to counsel in criminal cases is assured.  But, consider that England, France, Germany, Netherlands, Scandinavia and Canada fund civil legal services for those who cannot afford a lawyer, at state expense.  Amazingly, the province of Wales, England spends more per person for civil representation of its citizens that any other government in the world.  California and the USA rank at the bottom, and it is getting worse.

But the lack of representation in civil cases for most people in California is only one aspect of our current court operations.

 

RESPECT FOR THE INDEPENDENCE OF THE JUDICIARY

I don't have to recount the many sorry public displays of disrespect for the judiciary and of judges who have lost public confidence in recent years.  From the Clarence Thomas confirmation hearings to the circus like atmosphere over which Lance Ito presided to the indictments and convictions of judges in San Diego and around the state for corruption, many feel no need to stand in respect for the judiciary.

Politicians attack the courts at every turn while they fail to enact legislation to resolve problems that plague the court with "political" cases, or worse, they pass laws that they know are contrary to legal principle and invite judicial review, just to evade a problem.

We remember the judicial retention elections for Rose Bird and other members of her court, who were attacked for their positions on the death penalty.  We are now facing a retention election for a Republican Chief Justice and members of his court who are about to be targeted for their rulings on abortion, despite their consistency with precedent.

In our own county we saw a populist campaign to turn out of office judges who have an exemplary record and the respect of most of those who know our courts well.

 

SYSTEMIC CHANGES IN DISPUTE RESOLUTION

Due in part to the expense and disenchantment with the operation of our legal system, many have turned to alternative dispute resolution - mediation, arbitration, private judging, private court proceedings, and so forth.

The courts have in fact incorporated such procedures into court operations just to manage the heavy caseloads.

But those heavy caseloads are somewhat illusory in many counties.  The caseloads historically have not been evenly distributed among all of the judges in a particular locale.

Several years ago, in one of his last and most significant acts as Chief Justice, Malcolm Lucas and the representatives of courts from around the state, who administer the courts in a group known as the Judicial Council, adopted a rule requiring all courts to coordinate their calendars.

The rule was intended to make sure that the caseloads were shared between all of the judges in a particular locale, whatever their particular court.  That rule was soon modified to require coordination of all operations.  Finally, the Council imposed a requirement of coordination as a condition for increased funding.

That principle was endorsed by the legislature and implemented as a part of the trial court funding bill, AB 233 that was adopted at the end of the last legislative session after marathon negotiations between the Governor, Chief Justice Ronald George, and legislative leaders. 

 

TRIAL COURT FUNDING IS A REVOLUTIONARY CHANGE

You were probably not aware of the tortured and Byzantine method by which the trial courts have been funded in California in recent decades.

Now, in case I have caused your eyes to glaze over so far, listen up - this is about money and tax dollars!

In general, the process for funding the courts in the past has involved complicated political machinations each year between the counties who own and must maintain most of the facilities and collect fees of various sorts to help pay for them, the judges and lawyers who must work in them, the Governor who appoints the judges, and the legislature that fills the funding gap with general fund tax dollars and writes the laws.

Needless to say, the legislature often was not up to the task of making rational and principled allocations of funds based on need, efficient and effective operations and available resources.

Big "DUH"!

AB 233 put the funding decisions for each county's courts in the hands of a new Trial Court Budget Commission of sixteen judges and eight court administrators from around the state.  The legislature agreed to pay the bill by allocating a pot of money each year, based on various statistical data and operational goals.

As was reported earlier this week, this powerful Commission's members will all be appointed by the Chief Justice and they will all have to represent "the best interests of the public and the court system as a whole" rather than individual courts.  This is a major set back for the Los Angeles and other urban courts which had opposed such a requirement. 

It is a major victory for the Chief Justice and the smaller counties who have traditionally suffered at the hands of the urban legislators and court representatives.  One wonders what those Los Angeles judges are saying about their former colleague on the bench - Ron George.

 

CHALLENGES THAT CONFRONT THE SYSTEM

It is a good sign, in my humble opinion, that the Chief Justice and the Judicial Council are focusing on the best interests of the public and the court system as a whole.

The system needs some major overhauls.  In his annual address to the Judiciary last week, the Chief made a point of talking about reform.  Among the issues he proposed for legislative and judicial action were the following:

Jury Reform:  We are all aware of how problematic it is to be called for jury duty and sit endlessly waiting only to be sent home and called again another day.  For the past several sessions the legislature and the governor have been unable to agree on reforms which have been proposed by several studies.  The Chief is proposing that service be satisfied by one day in court or one trial a year.  He also is proposing increased compensation which is long overdue in this competitive economy and "perks" for jurors such as child care, transportation reimbursement and better facilities.

Alternative Dispute Resolution:  Here also there is a crisis which the legislature has been unable to address.  More and more disputes are being decided outside the courtroom.  That in itself could be positive.  However, there are many uncertainties that must be standardized:  qualifications for mediators, neutrals and arbitrators, and their immunity from suit, disclosure of conflicts, enforcement of legally incorrect arbitration awards, and many others.  The Chief will appoint a committee to make specific recommendations for legislation.

Court Consolidation:  Taking coordination of the courts a step further, the Chief is advocating a constitutional amendment on the June ballot to unify the municipal and superior courts statewide.  This will, by better and more efficient management, create judicial resources at minimum cost.

 

THE ROLE OF CITIZENS IN CHANGING THE COURTS

We as citizens, and some of us as lawyers, have a duty to become more informed about how our judges are selected, our courts are funded and how they operate from day to day.

According to many analysts, large numbers of Americans believe the courts are in deep trouble.  As I have suggested this is also a time of great opportunity to make long term reform in our justice system.

We must support independent judges who follow their mandate and make decisions based on legal principle - not public opinion.  We must insist on the highest qualifications in our judges and insist they avoid even the appearance of impropriety.  We must give them the respect they need to maintain decorum and careful deliberation in the courtroom

We must maintain a commitment to full and equal access to the courts for all persons, regardless of their ability to pay for a lawyer, at the same time we support and protect alternative dispute resolution for cases where it is the most fair and efficient way to decide issues.

In 1788, Alexander Hamilton wrote that "laws are a dead letter without courts to expound and define their true meaning and operation."  Last year, Supreme Court Justice Chin reminded some new lawyers that "to solve the complex problems of the future, we must care for the ancient legal roots of our past."  Citizens, lawyers, judges, and politicians have a big job ahead in an increasingly diverse California.  I hope we are up to it.