Chief Justice Speech - March 18, 2003

MARCH 18, 2003

Good evening. I want to thank Randy Lyman and the Northern California Chapter of the Society of Professional Journalists for this great honor. Making the courts more accessible to the public has been an express goal of California's judicial system for several years now, and I accept this award on behalf of all the judges and court staff who continue to strive every day to achieve that goal.

For almost 7 years, I have had the honor of serving as Chief Justice of California. That role confers a range of responsibilities that extend not only to the Supreme Court and to the process of deciding individual cases, but also to the judicial system as a whole. As Chief Justice, I serve as chair of the Judicial Council, the constitutionally created entity charged with setting statewide policy for the administration of justice. This position provides a broad perspective on the interaction of our courts, the bar, and society as a whole. The media and the courts intersect at numerous points, and their interaction provides a crucial link in our democratic society.

The press and the courts each have integral roles to play that are fundamental to the protection of the public and the core values of our nation. These demands often find us heading in the same direction. Yet at other times, they require the thoughtful weighing and consideration of what sometimes may seem to be competing interests and expectations. Our continued focus on the public interest and on open communication with each other can best help resolve these occasionally differing demands.

This evening, I want to briefly describe some of the changes in structure and approach occurring in the courts — changes that have fundamentally affected public access to justice.

Some 10 years ago, the Judicial Council was reorganized and began a methodical in-depth reconsideration of the judicial branch's ability to serve the public and fulfill its constitutional roles.

At the time, 220 separate trial courts were spread across the 58 counties of our state, and separated into two levels, municipal and superior courts. Funding came primarily from the counties, and the ability of courts to provide services varied greatly, depending upon the financial health of the particular county and the relationship between the court's presiding judge and whoever was serving on the county board of supervisors that year. The quality of justice dispensed by the courts varied greatly from county to county. And rather than focussing on improving access and fairness, courts often had to focus on fiscal survival.

When I became Chief Justice in 1996, I was invited to give a State of the Judiciary Address to a joint session of the Legislature. During that speech, which I delivered two weeks after assuming my new position, I made a commitment that some thought I should be committed for making — to visit the courts in each of California's 58 counties. I completed these visits during my first year in office, and observed that the situation in many courts was dire. During that year, I twice had to seek special emergency appropriations from the Legislature to bail-out court systems that were in danger of closing all or substantial portions of their operations.

In 1997, at our request, the Legislature enacted measures that transferred the responsibility for funding the local trial courts from the counties to the state. The ongoing task of making this transition is complicated not only by the differences in the existing systems employed by the courts, but also by the vast diversity in our courts. They range in size from 2-judge counties with populations counted in the few thousands to Los Angeles, the largest single trial court system in the world, with more than 430 judges plus dozens of subordinate judicial officers serving millions of people.

Much progress has been made, but we now, along with the rest of state government, face our most severe challenge due to the economic crisis confronting our state. Our new statewide funding system better enables us to spread the impact of this crisis among the trial courts of the state, and we have been working closely with individual courts to ameliorate the effects of existing and anticipated reductions.

At the same time, we remain vigilant against the risk of budget reductions that would make it impossible for courts to perform their core functions in serving the public. As the third branch of government, the judicial branch is charged with distinct and essential responsibilities. Unlike our two sister branches, however, we have no direct role in the creation of the state's budget.

The statewide funding structure has allowed us to more effectively advocate for the judicial branch's needs, but like the rest of government we are extremely concerned about the impact of cuts on our ability to meet the public's needs.

Another recent basic structural change also has proved valuable. In 1998, at our request the Legislature placed on the ballot a proposed constitutional amendment permitting courts, on a county-by-county basis, to vote to unify their municipal and superior courts into a single level of trial court. The expectation was that consolidating trial court resources — both judicial and administrative — would result in the elimination of considerable duplication as well as improve their flexibility and the range of services the courts could provide. Within 6 months of the voters' adoption of this measure by a two-thirds majority, the courts in 50 of 58 counties had unified, and the others soon followed — so that every county in the state now has a unified court.

Our expectations have proved correct. Unification has resulted in increased services to the public, including — to name a few — more specialized courts handling drug, domestic violence, and juvenile mental health matters; enhanced use of technology; more assistance to and services for self-represented litigants, more qualified court interpreters, improved jury service, and more options in more court locations.

Courts have been able to implement an impressive array of services and innovations - but budget reductions may make it impossible for courts to continue many of them — not because they are not cost-effective and useful, but because the basic funding simply has been eliminated. Such a result would be a serious step backwards, precisely at a time when pressures and demands on the courts are likely to increase, particularly from unrepresented litigants.

Finally, a third major structural reform is newly underway. Last fall, Governor Davis signed into law a bill creating a process for transferring California's 451 courthouses from county to state ownership. This followed a report by the State Task Force on Court Facilities based on a comprehensive three-year study of California's courthouses showing an urgent need. More than 90% of the court facilities need some degree of repair, maintenance, and replacement — and some pose a danger to human life and safety from toxic mold or collapse in the event of an even moderate earthquake.

This legislation will correct an anomalous situation. Courts, now funded by the state, are located in facilities owned by the counties — who no longer have oversight or much interest in their operation. Not surprisingly, counties often put their funds to other use in their jurisdictions.

The transfer of facilities is scheduled to occur between 2004 and 2007, and is to be revenue-neutral for both the state and the counties. Necessary funds will be collected from increases in various fees and penalties.

These three major reforms have squarely placed on the judicial branch increased responsibility for improved management and greater accountability. With this responsibility also comes the opportunity to focus more effectively on issues such as access to justice. Finally, the foundation is in place to allow us to do so. For the first time in our history, California's judiciary has the tools to look toward the future and our goal of ensuring access and fairness for all.

Many of the changes that already have occurred deal directly with increasing public access to the courts, as well providing information about how courts spend their money and make significant administrative decisions. For example, the Judicial Council, at its meeting earlier this month, engaged in an extensive public discussion of the judicial branch budget and the impact of potential reductions.

We publicly aired the many steps we already have taken to make reductions, and projected the effect of varying levels of further decreases that are being discussed in Sacramento. We have been working closely with the Executive and Legislative branches to discuss options proposed to offset projected reductions through savings and improved revenue collection — using means such as electronic court reporting, competitive security bidding, and enhanced collection of outstanding fines and penalties.

On the local level, the Judicial Council has adopted a rule requiring individual courts to provide quarterly financial reports, which are to be made available to the public. The Administrative Office of the Courts, the Judicial Council's staff arm, is working with the local court leadership to facilitate their compliance with this rule.

The culture of the courts generally is undergoing a significant shift in response to changes and new expectations. By definition and design, court systems are conservative — guided by constitution, statute, and precedent. Much of what courts do is done in confidence: the administration of justice involves decision-making processes that are not intended for public view.

This course has not been chosen lightly. Among the primary reasons for confidentiality in decision-making are avoiding undue pressures and preserving the integrity, objectivity, and fairness of the judicial process. We expect judges to decide matters based on the information provided by the parties and the applicable legal authorities. Judges should not be not bound or swayed by the latest opinion polls or the strongest interest groups — they must be bound only by the rule of law.

The deliberative process is confidential in order to encourage unfettered participation by those involved. In the California Supreme Court, for example, every case in which review is granted produces reams of drafts and memoranda. Ours is a collaborative process, in which persuasion, review, and commentary are critical to formulating the final written opinion of the court. The 7 justices must be free to express their own views and criticisms as they formulate their decisions.

The need for confidentiality during the process of reaching a decision does not by any means require that all court processes be performed in secret, or that the record upon which a judge bases his or her determination — barring compelling circumstances — be unavailable for public view. There is an important distinction between those areas in which the courts are accountable to the public will and those in which they are not.

One challenge for the courts - and one in which the media plays an important role - is to convey to the public these distinctions and the reasons for them. Our job is cut out for us. A recent poll by a Connecticut university indicated that more than three-quarters of those responding believed that the majority view of the public should influence court decisions. Approximately 38% of these respondents felt that the majority view should have a great deal of influence on the court.

This poll suggests that the unique and vital role of an independent judiciary — and its detachment from political processes and practices — are not sufficiently understood by the public. The questions of politicization of the judicial branch, the standards by which we should measure judicial performance, and the appropriate expectations we should have for our jurists, are increasingly being debated at every level. The desirability of an independent judiciary, and its integral role in our democracy, can be difficult to explain — but in my view, they are lessons that we cannot afford to abandon.

Independence of the judiciary means, of course, independence in decision-making - not freedom for individual judges or courts to act free of any constraints or criticism. In the courts, we have been exploring the ways in which appropriate information can be made available to the public. For example, courts have been hospitable to claims for information that previously may not have been released or made available due to long-standing, but unexamined, practices or traditions. The California Supreme Court, in NBC Subsidiary versus Superior Court (1999) 20 Cal.4th 1178, in an opinion I authored, held that the press and the public have a right to be present during all proceedings in a civil trial. Only if the court articulates an "overriding interest" may the courtroom be closed.

This unanimous decision led to the Judicial Council's adoption of rules that expressly recognize that the press and the public are entitled to access to court records, unless a strong showing is made that confidentiality is required by statute or rules of court. We continue to refine and monitor these rules concerning sealing of court records, as well as the presence of cameras in the courtroom, to ensure that a proper balance is struck.

Another recent decision by the California Supreme Court, Filarsky versus Superior Court (2002) 28 Cal.4th 419, also affects the public's access to information. The court, again in an opinion I authored, held that a superior court may not grant declaratory relief in an action bought by a public agency to determine whether the agency was obliged to disclose documents requested by a member of the public — where the individual has not initiated litigation to enforce his or her request. The court focused on the legislative intent to further the right of every person to "have prompt access to information in the possession of public agencies," and declined to permit agencies to bring such suits — because they might well discourage individuals from requesting information pursuant to the Public Records Act.

Public access and effective communication have been enhanced by our courts not just through judicial decisions and rule-making. An award-winning website designed to assist self-represented litigants — and others interested in understanding the legal process — provides a broad array of tools and information designed to assist litigants in family law, landlord tenant, conservatorship, and domestic violence matters.

The site has links to local court web pages, legal services providers, domestic violence shelters, and assorted other services. It provides step-by-step directions for how to proceed in certain matters, and offers directions for obtaining additional information. The site has had millions of hits since its inception — not only from self-represented litigants, but also from librarians, journalists, and even lawyers — and the response has been overwhelmingly positive. Parts of the site are being translated into other languages, and more translations and expanded services are contemplated in order to accommodate California's multi-cultural population. Imagine, we have more than 100 languages translated in California's courts — literally everything from "A" to "Z" — from Albanian to Zapotec.

This is not the only way in which technology has been employed to provide new services. In-court kiosks in many locations provide forms (and information on how to complete them) or permit payment of traffic tickets. On-line access to clerks' offices allows litigants and lawyers - and the press - to obtain up-to-date information on the status of cases. But the use of computers is only one means we are using to reach out to the public.

Mobile vans are traversing rural areas in several counties, bringing information and court services to the people who need them. Coordination with others involved in the justice system and in related social services have led to the establishment of courts for the homeless and for veterans at which individuals can clear up assorted court matters, and at the same time find services to meet their other needs.

The inclusion of local communities in the courts' planning processes have led to an increase in the use of collaborative justice courts. For example, drug courts, adapted to meet the requirements of Proposition 36, continue to make a profound difference in turning around the lives of individual defendants. I personally have attended drug court graduation ceremonies, and have found them exciting and inspiring.

Individual courts are providing more services to assist self-represented litigants, particularly in the family law area — and a Judicial Council task force is studying how courts can better accommodate the needs of these individuals. I recently attended the dedication of the first self-help center designed specifically to serve the Spanish-speaking community, which opened in Fresno, and we hope it will serve as a model for many more to follow.

I could continue with other examples, but will stop here. I hope I have conveyed to you some of the enthusiasm that exists in the courts and the excitement that has been generated by the many new programs and innovations that have been started over the past few years. Our court system has fully embraced the goal of improving access to justice at every level. Whether it is providing more information about how we operate, becoming more transparent and accountable for our use of public resources, or offering the tools that enable more members of the public to obtain the court services to which they are entitled, California's judicial system has acted to realize these goals.

To remain effective, the courts must rely on the trust and confidence of the public we serve. We take very seriously the responsibility of earning that trust. We recognize that as members of the media, you are not there to serve as cheerleaders for the courts — you are there to investigate, inform, and illuminate. You serve as the public's eyes and ears on the courts — but the courts cannot and do not rely on the media alone to educate and reach the public. We are, however, committed to working with you to provide information that offers a fuller picture about the vital role and responsibilities that an independent judicial system — like an independent press — plays in our democratic society.

The national concern with preserving our freedoms in a time of international crisis, and the concurrent economic crisis facing California and most other states, highlight the importance of a vital independent judiciary and a vital independent press. Our courts' ability to continue their services and to enable our residents to vindicate their legal rights have proved highly effective in the past. We must make sure that our fundamental ability to administer justice is not compromised in any way. By providing greater access to justice, we hope to ensure not only that the courts are there for all those who need them, but also that the quality of justice being dispensed by our courts can be evaluated by the press and by the public we serve.

I would like to close with a quotation from an opinion written by my colleague, the late Justice Stanley Mosk, who served a remarkable 37 years on our state Supreme Court — almost one-quarter the history of California. He wrote in Times Mirror Co. versus Superior Court (1991) 53 Cal.3d 1325, 1348:

"[T]he lessons of history tell us over and over that secrecy in government . . . causes lack of public confidence and various other ills. We would do well to heed the words of Justice Brandeis: 'sunlight is said to be the best of disinfectants.'

"Secrecy is inconsistent with the duty of public officials to keep the public informed of their activities . . ."

I consider this award an acknowledgement of our efforts to open up the judicial process. Thank you again for this recognition of the many steps our courts are taking to serve the public and to improve the administration of justice in California. I look forward to continuing to work with you in the future.

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