Chief Justice Speech - May 21, 2004

MAY 21, 2004

Good afternoon. Thank you for inviting me to join you today.

For eight 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 California 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 legal profession, 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. Courts rely on the trust and confidence of those they serve in functioning as the strong and independent branch of government envisioned by our Constitution. And the media is the primary source of information for the public about the judicial system. Newspapers in particular are essential to provide the kind of in-depth coverage that aids the public in understanding our system. As judges and journalists each gain more knowledge about each other, it enables all of us to do a better job.

When preparing to join you today, I looked at the program for your convention. I was interested to find that several of the subjects listed would be completely at home at a judicial education program. The meetings this morning had particular resonance: one on privacy, followed by a session on Hispanic newspapers and Spanish-language editions, and finally a discussion of "Top 10 Ways to Do More with Less." As I believe my remarks will demonstrate, these topics all touch on issues that are at the forefront of discussions in the judicial branch.

It should not be very surprising that the media and the courts naturally share many concerns. Essentially, we both are in public service, and both are essential to maintaining a strong and effective democracy. Our respective functions require us to make accurate information available and accessible to the widest audience. And we share the challenge of fulfilling our responsibilities despite limited resources.

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 joint continued focus on the public interest and on open communication with each other can best help resolve these occasionally differing demands.

Before addressing some particular issues that involve the courts in matters of privacy and access to information, 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, our trial courts were 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 differed substantially from county to county. And rather than focusing 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 - something I have done every year since then. 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 was 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. However, 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 judiciary 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 the 58 counties had unified, and the others soon followed - so that every county in the state now has a unified court. We went from having 220 trial courts across the state to 58 - one in each county.

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; complex litigation courts; 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 in recent years 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.

Many courts have had to take difficult steps to absorb budget reductions imposed on them during the past several years. In counties across California, courts have had to lay off employees, impose mandatory furloughs, shorten the hours of clerks' offices, and close courthouses for an afternoon or a day a week. Some court facilities have been shut down, and the matters handled there shifted to other court locations in the affected county.

The Governor's May budget revise has restored much of the funding that was in jeopardy in the original January budget proposal, but we are dependent upon favorable legislative action on the latest budget proposal if the courts are to be able to continue to perform their core functions in serving the public. As we struggle through this time of economic difficulty for our state, we also are seeking long-term solutions that would provide a more stable source of funding to help us weather the ups and downs of revenue received by the state.

A third major structural reform is also under way. In 2002, a bill was signed into law 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 percent 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 are being collected from a shift in the revenue stream generated by the courts and increases in various fees and penalties, to be supplemented by a future bond issue.

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 as providing information about how courts spend their money and make significant administrative decisions. For example, the Judicial Council at recent meetings has engaged in an extensive public discussion of the judicial branch budget and the impact of potential reductions - with input presented by users of the court system.

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. We have been exploring the ways in which appropriate information concerning the courts 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 v. Superior Court (1999) 20 Cal.4th 1178, in an opinion I authored for the court, held that the press and the public have a right to be present during all proceedings in a civil trial - not just at a criminal 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 there is a presumption 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. Court records may be sealed only if a judge "expressly finds facts that establish:

(1) There exists an overriding interest that overcomes the right of public access to the record;

(2) The overriding interest supports sealing the record;

(3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;

(4) The proposed sealing is narrowly tailored; and

(5) No less restrictive means exist to achieve the overriding interest."

(California Rules of Court, rule 243.1.)

Another rule of court, rule 980, governs requests for photographing, recording, and broadcasting in the courtroom. It provides:

"In ruling on the request, the judge shall consider the following factors:

(i) Importance of maintaining public trust and confidence in the judicial system;

(ii) Importance of promoting public access to the judicial system;

(iii) Parties' support of or opposition to the request;

(iv) Nature of the case;

(v) Privacy rights of all participants in the proceeding, including witnesses, jurors, and victims;

(vi) Effect on any minor who is a party, prospective witness, victim, or other participant in the proceeding;

(vii) Effect on the parties' ability to select a fair and unbiased jury;

(viii) Effect on any ongoing law enforcement activity in the case;

(ix) Effect on any unresolved identification issues:

(x) Effect on any subsequent proceedings in the case;

(xi) Effect of coverage on the willingness of witnesses to cooperate, including the risk that coverage will engender threats to the health or safety of any witness;

(xii) Effect on excluded witnesses who would have access to the televised testimony of prior witnesses;

(xiii) Scope of the coverage and whether partial coverage might unfairly influence or distract the jury;

(xiv) Difficulty of jury selection if a mistrial is declared;

(xv) Security and dignity of the court;

(xvi) Undue administrative or financial burden to the court or participants;

(xvii) Interference with neighboring courtrooms;

(xviii) Maintaining orderly conduct of the proceeding;

(xix) Any other factor the judge deems relevant."

Under this rule, "The judge shall not permit media coverage of the following:

(i) Proceedings held in chambers;

(ii) Proceedings closed to the public;

(iii) Jury selection;

(iv) Jurors or spectators; and

(v) Conferences between an attorney and a client, witness or aide, between attorneys, or between counsel and the judge at the bench."

I am pleased that in recent years our California Supreme Court has been increasingly willing to televise oral arguments in cases of significant public interest - often, with help from the California Channel, expanding the walls of the courtroom into hundreds of high school classrooms. Next Tuesday's oral arguments before us in the single-sex marriage cases will be broadcast on that channel, as well as Court TV, C-SPAN, and other networks.

The availability of electronic court records has highlighted the need to balance the public's interest in convenient access to court records with the privacy concerns of victims, witnesses, and parties. Rule 2073 prohibits courts from posting complete case records on the Internet; in certain types of cases, including generally criminal, juvenile, mental health, and family law cases, only the indexes, registers of actions, and court calendars may be posted to the Internet.

Earlier this year, however, the Judicial Council in a tie-vote broken by my affirmative vote, approved rule 2073.5, which provides for an exception allowing remote electronic access to certain information in high-profile criminal cases under specified conditions. This new rule reflects the exigencies facing the press and court personnel in meeting the extraordinary demand for access to court documents in recent high-profile cases.

Public access and effective communication have been enhanced by our courts in ways beyond judicial decisions and rulemaking. 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 parties 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. The site is available in Spanish; parts 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. And Supreme Court opinions are available electronically within seconds of their posting at the clerk's counter.

But the use of computers is only one means we are using to reach out to the public. Mobile vans traverse 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.

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.

Although the courts cannot and do not rely on the media alone to educate and reach the public, we are 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, as California and most other states concurrently face an economic crisis, highlights 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. v. 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 look forward to continuing to work with you and others in the media to make the public more aware of the vital role played by the courts in our democracy. Thank you again for your invitation to speak with you today.

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