Chief Justice Speech - May 15, 2007

MAY 15, 2007

Good evening. It is an honor and a pleasure to be here this evening, and to see so many long-time friends and meet participants from a number of foreign and domestic jurisdictions. I very much appreciate the opportunity to speak with you and will be pleased to respond to questions at the conclusion of my remarks, if time permits.

I am very pleased that in attendance this evening are two of my colleagues from the California Supreme Court, Justice Marvin Baxter and Justice Kathryn Werdegar, some of the members of the California Judicial Council—the constitutional body that I chair, charged with setting statewide policy for the administration of justice in California, and our Administrative Director of the Courts William Vickrey.

The American Law Institute is a vital resource for the development and examination of the common law in the United States. California's courts, like those of other states, often turn to the work of the Institute to assist us in analyzing and determining the difficult questions presented in the matters that we review. Often overlooked is the circumstance that well over 90% of the cases filed in our nation's courts are resolved in state tribunals.

Looking at the projects listed on your agenda for this meeting, I noticed some topics that are very familiar and traditional, such as tort liability for physical and emotional harm—and others that are of much more recent vintage, such as principles of the law of software contracts. By integrating and exploring strands from various jurisdictions and weaving them into restatements, model codes, and other publications, A.L.I. contributes immeasurable service to the rule of law in California and in the nation as a whole—especially for those of us for whom electronic research, the Internet, and much of modern technology remain somewhat akin to alchemy.

Although I am not conversant with the technical details of the Internet, like most jurists I am well aware that it is growing at an unprecedented rate, bringing with it not only great benefits but also thorny issues involving traditional concepts such as jurisdiction. The principles of long-arm jurisdiction, diligently studied by first-year law students for decades, are now being stretched and reshaped almost beyond imagination by the wireless connections that tie us together in new ways. We in California look forward to your work on this and related issues, and know that we shall be rewarded with clear, well-conceived writing and practical analyses that will help guide courts as they seek to apply traditional concepts to novel circumstances.

Courts today are being challenged on every front. On the one hand, we are asked to resolve unprecedented legal questions dealing with technologies that did not exist 10 years ago. On the other, heightened public expectations about the role of the judicial system in settling societal problems have gone hand-in-hand with increased public exposure and scrutiny—not all of it temperate in tone. And like much of society, courts have been pressured to meet the needs of a changing and increasingly diverse population—in the case of California, a population of more than 36 million people with approximately 100 languages being translated annually in the courts of our state.

Judicial systems are being called upon to respond effectively—but must do so while defending and maintaining the basic independence in decision-making that is so crucial to our system of government. In the midst of a rapidly changing society, courts often find themselves balancing between responding to appropriate public needs and resisting inappropriate pressures.

California's judicial branch has long focused on improving the administration of justice by increasing public access to the courts. Our approach in furthering this goal has taken a variety of forms, but underlying almost all of our efforts has been the sea change that has occurred in the structure of our court system during the past 10 to 15 years.

California's state court system includes what is reputed to be the largest law-trained judiciary—at least in the western world—with approximately 1,650 general-jurisdiction judges, 450 court commissioners, 19,000 court employees, and a budget of about $3.7 billion.

During my first year as Chief Justice, when I visited the courts in all 58 of California's counties, traveling more than 12,000 miles around the state, I found that the quality of justice being dispensed varied tremendously from county to county. California's trial courts then were funded primarily by the counties in which they were located, and the economic health of an individual county—not to mention the state of relations between the local court and the county board of supervisors—resulted in major disparities in the resources available to the courts and in the services offered by the courts to the public.

The fundamental transformation of California's court system during the last 10 years following those visits has promoted not only increased access to justice, but also greater independence of the judiciary as a co equal branch of government.

The first of three major structural reforms to California's court system, all instituted at the request of our Judicial Council but requiring legislative approval, was to switch in 1998 to a system of state funding for the trial courts. Under subsequent legislation, the operating budget of the trial courts no longer is submitted as part of the Governor's budget proposal but now is tendered by the judiciary—consistent with its status as a separate branch of government—directly to the Legislature. And this part of the judicial branch budget is tied to a formula, based on increases in costs and caseloads, that has brought about automatic augmentations of more than $100 million to our trial courts in each of the last three budget cycles.

New programs still must be separately sought and funded, and historic inequities among counties are still in the process of being adjusted—but the bottom line is that trial courts across California now have far more consistent and adequate funding.

The institutional importance—and often the difficulties—of obtaining more secure funding have been emphasized in various studies of courts and budgeting. For example, last year the Constitution Project, a bipartisan independent think tank that describes itself as an organization that "promotes and defends constitutional safeguards by bringing together liberals and conservatives who share a common concern about preserving civil liberties," issued a report entitled: "The Cost of Justice: Budgetary Threats to America's Courts." This report details specific problems encountered in states across the nation due to budgetary shortfalls, ranging from the complete closure of court facilities to diminished programs and restrictions on (and delays to) public access to the courts.

Among the many causes of the fiscal deficiencies in funding the nation's courts are negative reactions by the legislative and executive branches to judicial decisions, and a philosophy—prevalent among some members of our sister branches—that views the judiciary as just another agency of government. In California, we have experienced both phenomena in the recent past. On occasion, in this era of term limits, I have found myself explaining to new legislators in Sacramento—an increasingly large majority of whom are not lawyers—that the judicial branch is co equal to and independent of the legislative and executive branches—and is not the equivalent of the Department of Fish and Game or the Board of Cosmetology.

In 2004, the American Bar Association's Commission on State Court Funding, formed by the Judicial Division and the Standing Committee on Judicial Independence, issued a report containing "specific recommendations to ensure adequate, stable, long-term funding for state courts under all economic conditions." It surveyed the problems of courts under present budget practices.

The A.B.A. commission's proposals, like those of the Constitution Project, focused on providing predictable funding and on direct submission of the judicial branch budget to the authority charged with funding power. The approaches in these reports and others like them share themes that include ensuring flexibility, budget development, and placement of internal administrative control and governance within the judicial branch, as well as regularizing the process relating to the judiciary's budget presentation and the allocation of funding to the branch to make it less susceptible to changes imposed by the other two branches of government, which hold the purse strings.

In California, we have attempted to employ an amalgam of approaches to ensure adequate and secure funding—and we continue to work to educate the public and our sister branches of government about the importance of budgetary stability for the judicial branch. We recognize, as observed in the report of the A.B.A. commission, that "Among the inherent tensions built into our government is the judicial branch's dependence upon the legislature (and in some cases the executive) for the funds to operate." And we also recognize that although we cannot ignore that tension, we can attempt to ameliorate its impact on the administration of justice.

As I related to you, we in California have adopted many of the strategies suggested in these and similar studies—and we continue our efforts to further stabilize the funding system for the state's courts.

Let me turn now to the second of the three major structural changes we have made in California's court system in the last several years. The long march toward unifying the trial courts began in the 1940's. In 1948, then Chief Justice Phil S. Gibson observed in a speech to a local bar association that "The average layman would, I am sure, assume that all lawyers are thoroughly familiar with the organization and jurisdiction of all of our courts. I have found, however, that there are very few lawyers who can correctly name all the types of trial courts in the state, much less give the sources and extent of their jurisdiction." That seems a surprising statement until one realizes that a California Judicial Council report issued a few years before had described what was then the state's 6 different and distinct types of inferior courts, totaling 767 courts, each typically having jurisdiction that overlapped with at least one other court.

The first step toward unification recognized municipal and justice courts in 1950 as the sole courts of limited jurisdiction, combining with the superior courts to make 3 levels of trial courts in the state. Efforts at further consolidation were unsuccessful during the next few decades, but by the end of the 80's, progress had resumed.

The passage of the Trial Court Realignment Act in 1991 required courts in each county to coordinate to better utilize judicial and administrative resources. The existing duplication and inefficient use of resources furthered the push toward coordination and simplification. In 1994, the justice courts were eliminated through a constitutional amendment, and a push for complete unification of the trial courts began in earnest.

Our efforts finally achieved success in 1998 with the enactment of a constitutional amendment approved by the voters by a margin of almost 2 to 1. This measure permitted courts, on a county-by-county basis, to merge upon a majority vote by the judges of each level of trial court. Within a few years, courts in every county had elected to unify, and what had remained as two levels of 220 separate courts became a single-level court of general jurisdiction -58 Superior Courts, one in each county.

The third of our structural reforms is a work still in progress—the transfer of court facilities from county ownership and control to state ownership under judicial branch management. Counties—already strapped for funds—proved less and less willing to expend resources on courthouses once the courts became a statewide fiscal responsibility. Transfers began, following the Trial Court Facilities Act of 2002, but initially were slow to occur.

Many of our courthouses are in very poor condition after decades of neglect under county stewardship, sorely in need of major seismic and other repairs and dangerous to all who enter them. Others simply are inadequate to the task, with insufficient space, antique electrical systems, and no means to safely transport prisoners to court, to house potential jurors, or to keep impassioned litigants in family law and other contentious proceedings apart while waiting for trial to commence. Others lack basic security systems.

One major deterrent to the transfer of these facilities was a provision barring the state from assuming responsibility for courthouses that did not meet seismic safety standards. It turned out that more than half of California's court space fell below the specified criteria.

Last year, we came up with a legislative fix that allows the transfer of such substandard structures if the county in question agrees to retain its existing liability for seismic damages for 35 years, or until the courthouse is repaired or has been replaced. Since the new measure was enacted, the pace of transfers has accelerated dramatically, and we expect at least 100 of California's 451 courthouse facilities to complete the transfer process by the end of next month.

Let me further explain the significance of these recent structural innovations in the California courts. What do they have to do with the development of the substantive law? What relevance do they have to the American Law Institute and its work?

In my view, a great deal—not only because of our shared dedication to the goal of ensuring judicial independence, but also because of the very practical impact of this type of reform on the mission of the A.L.I.

Each of the initiatives we have implemented was designed to allow the courts to make the best use of available resources and to ensure a more uniform system of justice across the state. They are aimed at providing stability and predictability. Only if courts can anticipate the future with confidence, are they able to meaningfully plan—and only through such planning can courts successfully meet the public's needs and expectations.

At stake are not simply fiscal security and administrative efficiency for their own sake. These principles and their application, in my view, are fundamental building blocks of judicial independence and the rule of law—and are part and parcel of the need to provide the judicial branch with an institutional identity akin to that enjoyed by the other two branches of government.

Courts and commentators traditionally have focused on decisional independence for the courts—and for individual judges. By that, I mean of course the ability of courts to decide cases based upon the law and precedent, and not in response to political or other pressures. But the other side of the coin is institutional independence—the ability of the courts to operate as an independent, co equal branch of government.

Attempts to politicize the judiciary are not a new phenomenon. At the beginning of the Republic, the impeachment of United States Supreme Court Justice Samuel Chase in 1805 was an early test of how the judiciary would be viewed. Was it simply an arm of the political party then-prevailing in the other branches of government, in that case the Jeffersonians who had succeeded the federalists under whom Chase had been appointed? Or was it to be an independent judiciary separate from the ebb and flow of political fortunes? As we know, the effort to remove Chase failed, and the Supreme Court under the leadership of Chief Justice John Marshall went on to invigorate the concept of the judiciary as an independent force separate from politics or other undue pressures of the day.

In remarks found on the website of the American Judicature Society, Barry Friedman, then a visiting professor at New York University's School of Law and Co-Chair of the society's Task Force for the Center for Judicial Independence, observed that the experience of the past 200 years has shown that attacks on the judiciary and on judicial independence "are inevitably political." Professor Friedman characterizes such assaults as "launched to express dissatisfaction with the content of particular judicial decisions," and he correctly observes that "those attacks have come from every point on the ideological spectrum."

Having served on the bench for more than 35 years, I am not so naïve as to believe that every judge comes to each case with a completely open mind free of all preferences and predilections. But the best judges, in my view, aspire to apply the law fairly as it is, and not as they might like it to be. And they do so even if the result is contrary to their own inclinations. We are fortunate that the vast majority of judges try to do just that and to resist improper external pressures in reaching their decisions. That is the heart of the rule of law. But we also must accept the reality that there will be times we deeply disagree with the conclusions reached by judges—not only as a matter of belief, but as a matter of legal analysis. If the issues and the application of the law were immediately apparent to all, there would be little need for courts.

Characterizing the role of the judge as wrestling with the issues and attempting to come to the best possible solution in the absence of absolute truth is not always easily explained to a lay population steeped in a political culture of dichotomies and—according to a recent nationwide poll—unable for the most part to name the three branches of government. I would imagine that each of you, as a lawyer actively engaged in the practice of law or as a member of the academic community or the bench, can recite recent instances of threats to judicial independence arising out of lack of understanding or disagreement with a particular decision or action by a court.

The threats take many forms. They include "jurisdiction-stripping," which legislative bodies threaten when they disagree with the direction courts have taken in a particular area of the law. Sometimes they include jurisdiction-granting—as when the United States Congress vested federal courts with jurisdiction in the Terry Schiavo case a few years ago in the hope that the federal courts would see the matter differently from the state courts.

Last year in South Dakota, voters soundly defeated a measure known by the snappy acronym "JAIL for Judges"—for Judicial Accountability Initiative Law—that would have divested judges of judicial immunity and made them subject to civil and even criminal penalties for decisions with which specially empanelled grand juries disagreed—even if those rulings were upheld on appeal—with the additional consequence of lifetime ineligibility for service on the bench after 3 such "strikes." The proponents of this measure are, I am sorry to say, Californians—and they have promised to place their measure on the ballot in other small states as part of their movement aimed at bringing the initiative home to California and other large states.

Articles in the last several months in the New York Times have described the correlation between contributions from special interest groups and voting patterns among justices of Ohio's high court.

In Texas, judicial elections are blatantly partisan affairs, featuring contested races between candidates even for the Supreme Court. The top 10 candidates for the 5 Texas Supreme Court seats on the 2002 ballot raised more than $5 million, and 4 years earlier the amount was almost $12 million. In last year's election, incumbents were not seriously challenged but still raised considerable sums. Major contributors in recent years include civil defense lawyers, the plaintiffs' bar, physicians, and business associations. In a poll conducted in 2001, 28% of the Texas judges surveyed stated they believed campaign contributions had affected their judicial decisions.

The impact of money on the judiciary thus flows both from the resources provided—or not provided—within the governmental structure by the executive and legislative branches, and from funding furnished by the private sector for judicial elections. This impact is amplified by the ramifications of the United States Supreme Court's decision in Republican Party of Minnesota versus White and its progeny, invalidating on First Amendment grounds some of the judicial canons that restrain political speech in judicial campaigns.

Clearly, determining ways to lessen the potential for improper fiscal, political, and other pressures from any source on judicial decisionmaking is essential to ensuring the independence of the judicial branch. I view our efforts to restructure funding for the courts as basic to supporting their independence, while still ensuring fiscal accountability on their part.

The judicial branch traditionally has had the least defined identity of the three branches of government. Chief Justice William Howard Taft is recognized as the first to initiate the organization of the federal judiciary into a more cohesive unit. He has been described as working to "transform the federal judiciary from 'an entirely headless and decentralized' institution, into one capable of 'executive supervision.' " As a former President of the United States, he recognized that the federal judiciary needed a coherent identity to enable it to not only function together as a branch of government focused on achieving common ends, but also to allow it to adopt means designed to ensure appropriate accountability.

This state of affairs also has characterized court systems at the state level. But with changing times, the challenges facing the courts have proliferated. Our society has become more mobile, disputes have become less local, the population has become more diverse, and litigation has become more costly. To address these changes effectively, courts must employ a perspective that looks beyond local boundaries and considers how best to meet the public's needs on a statewide basis. Doing so requires a court system that has the structural integrity and ability to speak and act as a separate branch of government. It must be able to analyze, evaluate, and articulate system-wide needs and problems, and to act in a coordinated fashion to resolve them.

Structural independence is essential to true judicial independence, even though we recognize some degree of interdependence with our sister branches and the need to work effectively with them to support the core values of government. Again, what does this have to do with the mission of the American Law Institute? A.L.I. describes its purpose as "to promote the clarification and simplification of the law and its better adaptation to social needs, to secure the better administration of justice, and to encourage and carry on scholarly and scientific legal work." Your mission is focused upon the rule of law and ensuring its vitality in our changing society.

In addition to the obvious interest you have in supporting an independent, accessible, and effective judicial system, the American Law Institute's work in analyzing the law is premised upon a legal system that serves the needs of the public by providing the guidance and predictability essential to a well functioning society. One side effect of a failure to support a strong judicial branch, however, is the growth of private judicial mechanisms, especially when inadequate resources and delay drive litigants from the public justice system.

I support the use of alternative dispute resolution in appropriate circumstances. But I also am increasingly concerned that issues of major interest to the business community and the public at large too often are litigated outside the public sphere—even though states such as California and New York have successfully provided complex litigation or business courts. One direct consequence of A.D.R. has been the departure of seasoned jurists to the lure of private judging. But equally, if not more important, has been the diversion of significant, law-establishing cases to such forums. Yes, this may have alleviated some of the burden of heavy caseloads on our courts. But it also has removed from public view important decisions relating to developing areas of the law.

I have had conversations with former judges now engaged in private judging who, although interested in the kinds of issues they are asked to rule upon, also bemoan the fact that their decisions will set no public precedent for future cases and thus will deprive others of the guidance that would have been provided by a court proceeding. Even the same parties may in the future find an identical dispute between themselves resolved in a different manner. The public cannot assess the ways in which these decisions may affect how business operates or how social policies are enforced and applied. If our public court systems principally become the repository of criminal cases and minor civil and regulatory matters, the evolution of the common law will be stunted.

In short, as leaders in the legal community and in the development of the law, you are uniquely positioned to understand and support the role of a robust, engaged, and effective public judicial system, able to ensure access to justice and to engage in the objective application and evolution of the law.

I hope I have been able to convey some sense of why I strongly believe we must devote our energies not only to the development of the substance of the law, but also to reinforcing the strength of the structures of our legal system in order to best ensure the independence of the courts and the primacy of the rule of law.

There are many ways in which California's courts are working to improve the administration of justice and to provide meaningful access to the courts for all. The task of guaranteeing a strong and independent judicial system requires efforts on many fronts. We in the United States are fortunate to have an organization such as the American Law Institute, comprised of a membership dedicated to the vital function of advancing legal principles by providing guidance and direction in the development of the law.

Thank you for your invaluable work and for inviting me to speak with you this evening. I look forward to collaborating with you in our common endeavor to support the rule of law and the fair administration of justice for all.

* * * * * * * * * *

© 2018 Judicial Council of California