STATE OF THE JUDICIARY
ANNUAL MEETING OF THE STATE BAR OF CALIFORNIA
CHIEF JUSTICE RONALD M. GEORGE
SATURDAY, OCTOBER 7, 2006
Good morning. I am very pleased to be here once again to address the Annual State Bar Meeting and the Conference of Delegates. I thank you as representatives of the local bars across California for your involvement and dedication to improving the administration of justice in our state.
I especially want to express my appreciation to Jim Heiting and the entire Board of Governors of the State Bar of California for their support and contributions during the past year. It has been a great and very successful partnership. And congratulations to Shelly Sloan, the incoming president, and to the new board members. I and the entire Supreme Court and the Judicial Council look forward to working with you during the coming year on the many challenges facing our courts and the legal profession.
Each of these two bar leaders has initiated important programs to advance the bench and bar's shared goals of improving our service to the public. First, Jim Heiting has been a major catalyst in creating the Pipeline Project, aimed at increasing the presence of all segments of California's diverse population in the bar and the bench — especially those groups who traditionally have not fully participated.
Enhancing diversity to better reflect the community we serve also has been a priority of the Judicial Council. During the past summer, in a letter to Governor Schwarzenegger, I described a summit on diversity that the Judicial Council had convened earlier in the year and some of the conclusions it had reached. The letter also contained some suggestions about expanding the reach of the current judicial selection process to produce a bench more reflective of California's diverse population. Along with many others, I engaged in related discussions with the Governor and his staff as well as legislative leaders and staff, particularly Assembly Speaker Fabian Núñez, who has been a leader in these efforts. I look forward to seeing an increasingly diverse bench that more fully reflects the population served by the courts.
The second bar leadership initiative that I want to mention comes from your incoming president, Shelly Sloan, who already has announced that he will be focussing on increasing civility in the practice of law. It is unfortunate but true that there is a need for the bar and the bench to explore this issue and develop ways to decrease the over-zealous advocacy that we increasingly encounter. We must remind ourselves that lawyers are not simply advocates — they are officers of the court.
Of course the role of the lawyer is to represent his or her client and the client's interests — but good lawyering does not mean becoming the alter ego of the client, or being willing to win at any cost in order to please. Courts are designed to provide a forum for the peaceful resolution of disputes, and the practice of law is intended to facilitate that process — not to inflame it.
We risk undermining the fundamental principles of our profession, and our ability to defend and advance the rule of law effectively, if the focus turns primarily to profit at the expense of professional duties and responsibilities. After all, we are members of a profession and are not merely engaged in a business. Shelly's statewide initiative to improve civility in our profession stands to benefit everyone — the individuals, the institutions, and the companies you represent, yourselves, the courts, and the entire administration of justice.
Last May, I celebrated my tenth anniversary as Chief Justice of California. This occasion provided an opportunity to reflect on some of the profound changes that have occurred in the judicial branch over the past decade, as well as to consider what remains to be done in the coming decade.
This past year has been an especially busy and productive one, and the success of the Judicial Council's ambitious legislative program was greatly aided by the Bar. Members of the bar visited legislators and staff and executive branch staff, wrote articles, made phone calls, met with editorial boards of newspapers, engaged in public forums, and generally stepped forward to work toward strengthening the judicial branch's ability to better serve all the people of our state.
We had three major goals this year — and often any one of such goals could take years of efforts to get through the Legislature. At the outset, it seemed that if we achieved one, we would be doing well, two would be excellent, and all three would be phenomenal. With the help of the Bench-Bar Coalition and other segments of the bar, as well as the members of the Judicial Council and its committees and task forces and individual judges and courts, and our friends in the California Judges Association — and with excellent assistance from the Administrative Office of the Courts — so ably led by its dedicated and tireless Director Bill Vickrey and Chief Deputy Director Ron Overholt and our very effective Office of Governmental Affairs — we were successful in all three endeavors: increasing judicial compensation, obtaining new judgeships, and facilitating the process of transferring local courthouses to state ownership under judicial branch management. A truly extraordinary year! Many thanks for your help in making it happen.
Let me give you a brief description of each of these achievements. In addition to the efforts I described to increase the diversity of the bench, the court system focused on maintaining and enhancing the quality of its judicial officers — and on creating new judicial positions to meet the ever-growing needs of litigants in the fastest growing areas of our state.
For several years, the need to raise judicial salaries has grown more and more urgent. Not that many years ago, joining the bench typically involved being paid a salary that was at the forefront of the legal profession. Judges today have abandoned that expectation. We do not anticipate matching the amounts paid by major law firms to their partners — or in many instances, even to their associates.
Nevertheless, the inadequacy of the compensation provided to individuals serving on the bench has been graphically highlighted by the circumstance that, for several years now in many parts of our state, judges regularly preside over matters in which the public lawyers — deputy district attorneys, public defenders, and city and county counsel — appearing before them are paid a higher salary than the judge.
Governor Gray Davis agreed to a 17 percent increase in judicial compensation, to be paid in equal increments over 2 years. We received the first 8.5 percent, but the second portion was sidetracked as the state's fiscal crisis intensified. This past year, Governor Schwarzenegger and the Legislature provided funding for the remaining 8.5 percent increase, which is in addition to the several percentage increase that judges will automatically receive based upon increases in compensation paid to state employees.
These increases we received certainly will help the situation, but providing appropriate compensation for judges is a continuing effort, and — as has been true in the past — your assistance and support will be crucial. Many judges who have left the bench have told me they do so with great regret. They love judging — but they feel a need to earn more in order to provide for their families, especially children headed toward college. We should not be losing experienced judges because they cannot afford to stay on the bench. Nor does it make sense for the state to have to pay a pension to a retiring judge who might have stayed, while also paying the salary of his or her replacement on the bench. And we must revise the Judicial Retirement System, because it is a deterrent to many well qualified individuals taking the bench.
A second major problem has been insufficient judgeships to meet the demand of a growing population and increased caseload, especially in the Inland Empire and the Central Valley. The Riverside Superior Court, for the second year in a row, was required to suspend its entire civil trial calendar for several weeks in order to avoid the dismissal of criminal matters.
In a recent study, the National Center for State Courts estimated that California needed 355 new judicial positions based upon increases in caseloads. We decided to seek the 150 most urgent positions over the next 3 years, requesting 50 judgeships in each successive year. The new positions are to be allocated pursuant to the Judicial Council's Judgeship Needs Study.
After some nerve-wracking moments toward the end of the legislative session, when the judgeships became a negotiating issue between our sister branches of government, we were gratified to have the Governor sign the bill, SB 56 authored by Senator Joe Dunn, adding the first 50 judges in the coming year.
Each year, there are fewer lawyers in the Legislature and they, like their colleagues, soon are term limited out of office. This makes it difficult to establish expertise and an institutional memory in Sacramento for issues affecting the bench and the bar. We need your help to explain why adequate judicial positions and fully functioning courts are just as important a part of the infrastructure of our state as its highway system. Judgeship shortages decrease the public's access to courts, foster an unstable business climate, and create enormous backlogs in the fastest growing parts of our state, delaying timely and accessible justice.
We will be seeking the second installment of 50 judges for the next fiscal year. And we shall be sponsoring a bill to permit the conversion of 161 commissioner positions to judgeships over a period of several years. Conversion would occur when the position becomes vacant and no longer is needed for subordinate judicial work. Commissioners earn a salary that is not significantly less than that of judges, but several considerations make the switch to judicial positions desirable.
First, commissioners may preside over matters only by stipulation of the parties. They are selected by the local court, and do not undergo scrutiny by the Governor, the State Bar's Judicial Nominees Evaluation Committee, or the electorate. Originally intended to preside over lesser matters in the courts, in many counties commissioners increasingly have been hired to fill in the gap of needed judgeships, and been assigned to preside over significant cases - even death penalty trials and multi-million-dollar civil litigation - because of the lack of an adequate number of judges. Rather than assigning commissioners to serve as judges in every capacity, we should ensure that those presiding over significant legal issues are duly appointed and elected judges.
Our third major goal for the year was to increase the pace of the transfer of court facilities from the counties to the state. The condition of many courthouses in California is dangerous to the judges, staff, lawyers, litigants, jurors, and other members of the public who enter their doors. Whether it is a lack of security that results in prisoners being transferred through public areas, or insufficient weapons screening, or buildings that are at threat in a moderate earthquake or are infested with mold and vermin, such conditions are unacceptable.
It is estimated that in Los Angeles alone, each year one half of the adult population visits a courthouse as a litigant in a small claims or other proceeding, or as a witness or juror, to obtain documents, to resolve a family law dispute, or to pay a citation. They, and all those who use court buildings, should not be at physical risk every time they step inside a court facility.
The transfer of courthouses has been much delayed because of the poor condition of many county-owned facilities. Counties, besieged by numerous competing demands, understandably often are not eager to spend their tight resources on improving these buildings. Court funding is now a state function, and counties often allocate their resources to meet other local needs.
At the same time, the state has been unable to assume ownership of seismically deficient facilities under the existing statutory scheme. Far more courthouses turned out to be in worse seismic shape than anticipated. Senate Bill 10 changes the law so that counties no longer must bring these buildings up to code in order to be able to hand them over to the state, and thus will be permitted to transfer seismically unsafe buildings. In exchange, the counties have agreed to retain liability for losses arising out of seismic deficiencies for the buildings for 35 years or until the buildings no longer are used for court purposes.
Facilitating these transfers will permit the judicial branch to direct state resources to buildings that need repair or replacement, and alleviate the problem of counties understandably reluctant to expend additional resources in order to qualify for a transfer of facilities to the state. We anticipate that this measure will greatly hasten the placement of courthouses under state ownership and judicial branch supervision, and speed the necessary repairs or replacements.
We also are very pleased that the Legislature and the Governor this year enacted important legislation to improve the court conservatorship and foster care systems.
At the Supreme Court, we have been busy as well. We welcomed Justice Carol Corrigan to our court in January, and she has been a quick study and active participant in the work of the court. The court earlier this week again conducted one of its special oral argument outreach sessions away from its traditional sites — this time in Santa Barbara — targeting the local high school population.
We continue to make progress in reducing the number of appellants in death penalty cases who are awaiting the appointment of counsel. The court still needs additional counsel not only for appeals, but even more so for related habeas corpus proceedings.
The court has been able to grant some raises in the fees paid to appointed counsel in these matters. However, during the last legislative session we were unsuccessful in raising the statutory limit on payment for investigative expenses in these habeas corpus proceedings, but the court will renew its request to change the $25,000 cap to give us more flexibility in setting the reimbursement level in these matters. We also will be studying our internal procedures to see whether there are additional basic changes that can be made to expedite and improve the processing of capital cases.
I strongly urge those of you who are qualified to seek an appointment to a death penalty appeal or habeas corpus case. We also have created, in conjunction with the Habeas Corpus Resource Center and the California Appellate Project, a program offering special supervision for attorneys in large firms willing to take these cases. The aim is to provide targeted assistance to enable these firms to handle these cases effectively and efficiently.
Looking ahead to the next 10 years, I am keenly aware that the progress that the judicial branch has made in so many areas has been due to the remarkable dedication of those on California's bench and in its bar. But the work of improving the administration of justice is far from done. Many challenges lie ahead. Unrepresented litigants, particularly in family law matters, continue to place difficult demands on the courts and we must continue to develop ways to assist these litigants in effectively accessing the court system and vindicating their rights.
Interpreter services continue to be a critical component of access to justice for many Californians. The Judicial Council is committed to continuing to work with the Governor and the Legislature to expand our programs to train, test, and certify qualified interpreters for the more than 100 languages translated each year in California's courts. We believe the types of proceedings in which interpreters are provided by the courts should be expanded to include, for example, family law and small claims matters.
We also are moving forward to improve the use of technology in the courts. Effective case management systems already are in use in many locations, and will be expanded. Providing additional electronic access to the public is an ongoing project across California.
Ultimately what all of this is about is improving access and fairness in our court system. That has been a paramount goal of the Judicial Council for more than a decade — and it will continue to be our goal in the future. We are committed to responding to the appropriate needs of the public, and to providing a strong and independent judicial system.
We need the bar's close attention in one other respect: to ensure that California's courts remain objective and independent. If they are not, all these projects and plans will be mere window-dressing.
There are troubling developments on a number of levels that have the potential to undermine the ability of courts to perform their historic and constitutional functions. Increasingly contentious and partisan judicial elections are on the rise.
I spoke last week on this subject at a conference held in Washington, D.C., on this subject, organized by Justices Sandra Day O'Connor and Stephen Breyer, and attended by most of the justices of the United States Supreme Court as well as leaders of the nation's legal, governmental, and business communities. One of the examples I discussed was the South Dakota initiative measure that will appear on the ballot next month entitled "Judicial Accountability Initiative Law," with the catchy acronym "Jail4Judges." Upon a finding of abuse of judicial discretion made by special grand juries, this measure would eliminate judicial immunity for judges, subject them to possible civil and criminal sanctions for decisions rendered in the course of their judicial duties, and render them ineligible for judicial service during their lifetime.
I could go on with other examples. For the most part, we have not yet seen this level of inflammatory developments affecting the selection of judicial officers here in California — although I should note that the South Dakota initiative originated with a California group that wants to pass the measure in several small states before bringing it here. We cannot assume we are immune, and if we ignore the trends that are testing the limits in other jurisdictions, we do so at our own peril.
In November, the Judicial Council is convening a national conference on judicial elections, and we anticipate it will result in a plan for action in the future. Such a plan, I know, will look to the bar to provide collaborative assistance and strong support to keep our courts as free as possible of inappropriate partisan politics and influence and maintain the rule of law as a cornerstone of our democracy.
Let me close by once again thanking you for your help in enhancing the fair and accessible system of justice that we are privileged to have in our state. This task is a noble one — and it will never be done. I look forward to working with you for many years in the future to ensure that California's courts continue to administer justice objectively and effectively for all Californians.