Chief Justice Speech - November 2, 2007

NOVEMBER 2, 2007

Good afternoon. I am very pleased to participate in this conference on Transparency in the Civil Justice System. The subjects to be discussed at this conference are of vital importance to the administration of justice, and I look forward to the publication next Spring of the papers to be presented here.

In many ways, transparency in the civil justice system—indeed in the entire justice system—is a value closely aligned with several of the express goals of California's judicial branch. Since initiating branch-wide planning efforts more than a decade ago, California has made one of its primary goals the improvement of the overall administration of justice with the objective of providing meaningful access to all persons needing the services of the courts. At the same time, the court system has taken seriously its responsibility to be accountable to the public for our use of the resources entrusted to us.

I would like to focus in my remarks today on a variety of factors that affect transparency in the operations of California's court system. I shall describe the fundamental structural changes that have occurred in our branch of government during the last decade—changes that have enabled us to undertake a wide range of innovations to improve our system, including increased access to the courts. And I also intend to discuss some judicial opinions and rules of court that affect transparency in the decisional process.

There are several developments that I believe are important to keep in mind as a background to your discussions today. Courts in California and across the nation are experiencing a surge of interest in their proceedings—while at the same time they experience an increase in pressures that may well threaten their impartiality.

The teaching of basic civics in our public schools too often seems to be neglected. Surveys conducted over the past decade have shown that two out of three adult Americans cannot identify the three branches of government—and one out of three cannot identify even a single branch. More could identify the Three Stooges by name, than could identify the three components of our cherished form of government.

Thus, while we strive to enhance the transparency of court operations and functions, we must enhance public awareness of the fundamental role of courts in our democracy: to serve as impartial adjudicators of controversies, unaffected by improper pressures, whether partisan, personal, or financial. At a time when we are purporting to export our democratic form of government to other parts of the world, it is imperative that we not forget at home that judicial independence and impartiality in performing this vital function is the cornerstone of our democracy, along with its corollary—adherence to the rule of law.

There is no question that 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 scrutiny of the courts—not all of it temperate in tone.

Like much of society, courts have been pressured to meet the needs of an 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—literally running the gamut from "A" to "Z," Albanian to Zapotec. As a result, 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 years.

California's state court system includes what is reputed to be the largest law-trained judiciary in the world—almost twice the size of the federal judiciary nationwide—approximately 1700 general-jurisdiction judges, 450 court commissioners, 19,000 court employees, and a budget of about 4 billion dollars.

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 and competing demands upon individual counties—as well as 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 and independent branch of government.

The first of three major structural reforms to California's court system, all instituted at our request 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 continue to 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 and thus are far more able to provide consistent and adequate services to the public.

As Chief Justice, I chair the Judicial Council—the constitutional agency comprised of judges, lawyers, two legislators, and court administrators—that is responsible for oversight of the statewide administration of justice. It is assisted by the Administrative Office of the Courts. In addition to taking positions on a variety of legislative and other policy measures and adopting rules of court that govern the conduct of court proceedings, the Judicial Council has adopted a variety of procedures directed at the orderly preparation of a budget proposal for presentation to our sister branches, standards for fiscal priorities and expenditures, and means to monitor revenues and expenditures within the branch.

The court rules also provide that Judicial Council meetings are open to the public except for issues involving personnel, security, and similar matters. The rules similarly address public access to administrative (as opposed to case-related) decisions made by trial courts, setting forth when information concerning budgets and the allocation of funds must be made available to the public. Trial courts now are required to provide public notice, and the opportunity for public input, before engaging in substantial reallocations of funds, closing or severely curtailing the hours of court operations, terminating crucial family law services, or entering into significant contracts without competitive bidding.

Disputes still arise concerning which court actions are administrative in nature, and also as to which come within exceptions to the general requirement that information be made available to the public. Some matters, such as personnel decisions, clearly are not subject to public view. Nevertheless, our system now has a presumption of access to far more information about court administration than traditionally has been allowed. The judicial branch has recognized that hand-in-hand with its increased responsibilities for managing a statewide budget goes increased accountability for those funds and public access to relevant information. And we continue to work to enhance public access to information concerning the operations of the courts. I should note, however, that some lingering disparities in available resources—and the judicial branch's overall need for additional resources to provide a complete technological infrastructure—still create obstacles to the courts' ability to provide full and consistent information to the public.

What is clear is that state funding provides a far more stable source of funding and permits the judicial branch to better ensure that justice is administered in similar fashion statewide—while recognizing that individual differences among courts also call for local solutions. It is obvious that Alpine County with two judges and 1200 residents has quite different needs than Los Angeles with more than 550 judicial officers and a population of more than 10 million—but at the same time, the courts in both counties share many fundamental qualities.

We have been remarkably successful in obtaining more secure funding, a development that not only enhances our branch's ability to ensure more consistency in the administration of justice statewide, but also has been recognized in various studies as affording significant protection to the independence of the judiciary by helping insulate the courts from improper influences.

In some ways, California's courts already are atypical. The decisions of the Courts of Appeal and the Supreme Court in California are subject to a constitutional provision, unusual among our sister states, that provides: "Decisions of the Supreme Court and the courts of appeal that determine causes shall be in writing with reasons stated." In other jurisdictions, appellate courts may decide cases and issue summary decisions that essentially state only the conclusion of the court with scant, if any, analysis. Although I must admit that in some instances such summary adjudication would be a useful tool, in California our constitutional provision has meant that generally appellate courts must provide reasons for the conclusions they reach.

This transparency at times can come at a price. 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, can result in funding decisions that are antithetical to a fully functioning justice system. We have been fortunate for the most part in the recent past. Nevertheless, 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 California, we continue to work to educate the public and our sister branches of government about the importance of an impartial and strong judicial branch. We recognize the inherent tension that arises from the judicial branch's reliance on our sister branches for funding. But we have achieved significant progress in establishing a more secure system, and shall continue our efforts to further stabilize the funding system for the state's courts and to further encourage the public's understanding of the fundamental role the judiciary plays in our society.

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. One might wonder how unifying the trial courts can affect transparency. In 1948, my predecessor 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 Gibson's observation had described what was then the state's six different and distinct types of inferior courts beneath the superior court, totaling 767 courts, each typically having jurisdiction that overlapped with at least one other court.

In short, transparency is aided if the court system can be rendered more coherent and comprehensible. In 1950, municipal and justice courts were recognized as the sole courts of limited jurisdiction, combining with the superior courts to make 3 levels of trial courts in the state. This situation remained unchanged until the late 1980's.

The Trial Court Realignment Act, adopted 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 move 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 two-to-one margin. 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. As a result, duplicate clerk's offices, jury pools, and purchasing of supplies for each court were eliminated. Litigants and lawyers no longer have to worry about filing in the correct court—or where to find the information they seek.

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. This process began with enactment of the Trial Court Facilities Act of 2002, and has encountered a number of delays arising from the very poor condition of most of our courthouses after decades of neglect. Many are 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.

There have been two major deterrents to facilitating the transfer of these facilities: first the question of who would assume responsibility for damages arising from the poor condition of the transferred facilities, and 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. The judicial branch brokered a legislative fix that has allowed 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.

What do these structural innovations have to do with transparency? Simply that without courthouses able to meet the needs of the public—up-to-date in technological capabilities, open to respond to inquiries, and safe for all those who enter them for any purpose—it is difficult to imagine a court system that the public can know, understand, and appreciate, or that by any measure can be effectively transparent in its operations.

All of these efforts have been aimed at securing the 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 judges 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 court system to operate as an independent, co equal branch of government. Ensuring a strong and impartial judicial branch helps provide transparency. A judicial branch that is controlled by partisan politics or special interests is unlikely to encourage the media and the public to scrutinize the actions of the branch. I have no doubt that each of you immediately can call to mind the secretive nature of courts in other nations controlled by the other arms of government or by partisan interests. Our courts are not perfect by any means, but by and large, they act openly in the light of day, under the critical eye of the press and the public.

And that circumstance leads me to a brief description of some other recent developments in California that have reinforced and guaranteed public access to the courts and to information concerning governmental activities in which the public has an interest. Courts traditionally conduct much of their work in private. The decision-making process properly is strictly insulated from outside influence. Appellate courts do their work in a collaborative setting in which the concurrence of at least two justices of a three-member panel in the Courts of Appeal, or four of the seven members of the California Supreme Court, is required. This process requires a setting in which to try out ideas, discuss concerns, offer suggestions, and rethink and rewrite in the quest to develop and hone an opinion that will receive the concurrence of a majority of the justices. The task of generating an opinion would become impossible if every step were open to the world.

That need for confidentiality in aspects of the adjudicatory process for a long time extended generally to all of the functions performed by a court. But more recently, courts increasingly have recognized that secrecy should be kept to a minimum, as demonstrated by court rules allowing public notice of information pertaining to court budgets and their allocation of resources. And that openness also must extend to court proceedings integral to the process of adjudication.

In recent years, 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. Thus, where formerly a stipulation to close a courtroom—or the request of a party to do so in order to spare a litigant from embarrassment—may have afforded a sufficient basis for keeping the press and the public out of the courtroom, that no longer is the case.

The California Supreme Court, in NBC Subsidiary v. Superior Court (1999) 20 Cal.4th 1178, 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 and not only in a criminal trial, as previously recognized. Only if the court articulates an "overriding interest" may a courtroom be closed.

This unanimous decision led to the Judicial Council's adoption of rules that expressly presume 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, by rules of court, or by an overriding interest that supersedes the right of public access. Any sealing of court records or exhibits must be narrowly defined. The Judicial Council continues to refine and monitor these rules to ensure that a proper balance is struck, and they have been amended as recently as this year.

The court rules do not require disclosure of materials that must be kept confidential by law, and these guidelines include a presumption that court records are open to public view. Sealing is permitted only if the party seeking it can demonstrate that there is an overriding interest that outweighs the public's right to access, there is a substantial probability that the interest will be prejudiced if the record is not sealed, the sealing is narrowly tailored to the interest, and no less restrictive means is available to achieve the overriding interest. This standard applies in both civil and criminal cases, to family law matters and personal injury actions, felony charges and probate cases. In short, without a clear showing of need or of a legal bar, our courtroom doors are to remain open.

We are enhancing transparency and access through other means: case information and updates are now available on-line in courthouses around the state. An award-winning court website that receives millions of hits each year provides easy access to information on everything from the hours of a courthouse in any county, to the address of local legal aid services, to how to obtain a domestic violence restraining order. Translated completely into Spanish and into several other languages in critical parts, it offers access to individuals who otherwise would have no idea how to even begin gaining entry into the court system. Step by step instructions for basic forms are available—not only on-line, but in self-help kiosks, or through a variety of legal aid and other programs spread across the state. Even our California Supreme Court engages in outreach efforts by holding special oral argument sessions in communities across the state and permitting live television coverage of its hearings when requested.

Transparency in the courts is a concept that can take many shapes, as demonstrated by the sessions of your program, and perhaps by my remarks today. In California, our court system has focused on providing information that helps the public appreciate what the courts do and how they do it—and allows all individuals to make use of the services of a system that so often is essential to their lives. Transparency in how a court system works and what it does may be of little benefit to someone who has no way of participating in the process. Providing a means for all Californians to have their claims and issues heard in the courts remains a major motivating force for our branch.

In my view, a strong judicial system is the cornerstone of our democracy. And a strong judicial system must exhibit transparency to aid the public's understanding of the role of an independent judicial branch. In California, we remain committed to improving meaningful access and accountability to the people we serve.

I wish you a productive and enjoyable conference and thank you once again for inviting me to speak with you today.

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