12 Days – The Recorder – Viewpoint: The Judicial Council’s misplaced priorities

Posted on September 5, 2011


This article was provided to JCW for those who don’t have access to The Recorder legal newspaper



The Recorder

Viewpoint: The Judicial Council’s Misplaced Priorities

Maryanne Gilliard and Susan Lopez-Giss

2011-08-26 10:24:41 AM


At last month’s Judicial Council meeting, San Francisco Presiding Judge Katherine Feinstein sought to convince the council to mitigate unsustainable budget cuts imposed upon California’s trial courts, and instead focus cuts on the Administrative Office of the Courts, a bureaucracy with no adjudicative functions. She was joined by representatives from other trial courts, and leadership of the 400-member Alliance of California Judges. A common theme was that cessation of one AOC project — the $2 billion California Case Management System that many believe will be obsolete well before deployment — would allow most if not all of the California courts to remain open for the foreseeable future. Additional cuts to the AOC’s budget would all but guarantee open courts.


The council and chief justice, despite earlier pledges that keeping courts open was their absolute top priority, again sided with the bureaucracy, by a vote of 15-2. $81 million legally available for the operation of trial courts this fiscal year instead stayed in the AOC coffers.


As a result of this decision, Judge Feinstein must now release 41percent of her court’s staff, and cease operation of San Francisco’s civil courtrooms for the first time in California’s history. This decision wasn’t made in a vacuum, and no other reasonable alternative presents itself. Yet some in the legal community — ironically including some who most loudly champion the CCMS boondoggle — question her decision. Their questions should instead be directed to the Judicial Council and the AOC, whose questionable actions and misplaced priorities over the past several years have finally taken their toll on our trial courts.


How did we get to this point? Space limitations allow only a few illustrations:


In 2003, the AOC embarked on an ill-planned computer project (CCMS). The AOC pegged the cost at $250 million. In February 2011, the Bureau of State Audits released a blistering 138-page report putting the real cost at $1.9 billion. The auditor found mismanagement, lack of oversight and a failure to follow accepted practices in executing the program. To date, CCMS has siphoned more than $600 million from the operations of local courts and is only somewhat operational in seven counties. It is a fiscal disaster and by the time it is implemented its version of technology will be outdated. Today, its claim of venue transparency and e-filing remains unfulfilled.


In 2009, our former chief justice went to the Legislature and obtained authority to close all courts to the public one day each month. Ostensibly done because of budget cuts to the branch, it was mostly due to the CCMS project’s insatiable need for ever-larger cash infusions. The Judicial Council unanimously supported this action. In doing so, they communicated to the Legislature the unintentional message that the judiciary was akin to any state agency, to be shut down at will in tough budget times, rather than a separate and co-equal branch of government. Worse, the subsequent audit made it obvious to everyone that the courts had been closed not out of necessity, but to fund a runaway project. (That same year the AOC spent roughly $150 million on CCMS, almost the exact amount needed for all courts to stay open). This unnecessary closure has permanently diminished the judiciary in the minds of legislators, and the spending decisions of the council leave them understandably confused about our priorities.


Despite our worsening financial picture, our former chief departed soon thereafter, saying he did so in good conscience because “our fiscal position is sound.”


Most judges were cautiously optimistic that the new chief would reverse some of these crippling decisions. Recent events leave little room for continued optimism. The current council continues to fund CCMS despite the certainty that this course will result in additional closures, layoffs and curtailment of services to the public. Last year, over objections from Sacramento Presiding Judge Steve White and the Alliance of California Judges, the council allowed the AOC to spend $93 million from trial court funds on CCMS. The council did this knowing that incoming Gov. Jerry Brown had signaled his commitment to impose fiscal discipline. Most recently, on July 22, the council refused to suspend — even for one year — spending on CCMS which would have resulted in $56.4 million available to our trial courts. Many judges privately wonder if the CCMS contract (amended more than 100 times by Deloitte, the service provider) is so one-sided that the AOC is simply unable to figure a way to turn off the money stream.


CCMS is but a symptom of the larger problem — the metastasizing central bureaucracy itself. In 1998, the AOC employed 268 staff; today that number exceeds 1,000 and just two weeks ago the AOC claimed to be unable to pinpoint the actual number, after weeks of trying. Roughly one third of AOC employees are paid more than $100,000 per year. In 2007, the former chief justice spiked pension benefits for the top 30 paid employees so the public pays the full cost of their pensions, with the AOC employee contributing nothing. Since court hours have been reduced for the public, 80 percent of AOC staff received retroactive pay raises.


At last month’s council meeting, Judge Feinstein did what few judges have had the courage to do — she publicly took on the AOC, drawing the line between judges and bureaucrats, between core services and AOC pet projects. After she concluded her remarks, interim AOC Director Ronald Overholt rather oddly stated that he and his agency “would not attack the trial courts.” However, it now appears that others are attacking the messenger for telling the truth about AOC profligate spending, ineptitude and arrogance.


Rather than backing down, Judge Feinstein has fought back, this time in a letter to the council explaining how reliance upon AOC budget misrepresentations last year stopped her court from following through on contemplated and more modest actions which would have prevented ruinous layoffs now. She has rightfully renewed her request to the council for additional funding and that funding should be provided to all courts. It’s time that California’s judges display the same courage demonstrated by Judge Feinstein. Further, her attackers must understand in attacking her; they attack all judges who believe service to the public is more important than servicing the bureaucracy.


Judge Maryanne Gilliard is on the Sacramento County Superior Court and Judge Susan Lopez-Giss is on the Los Angeles County Superior Court. They are both directors of the Alliance of California Judges.


The Recorder welcomes submissions to Viewpoint. Contact Sheela Kamath at skamath@alm.com.