Chief Justice Speech - February 27, 2008

FEBRUARY 27, 2008

I am very pleased and honored to be part of this symposium focused on the remarkable progress achieved by the Massachusetts courts over the past five years in enhancing the management of the state's judicial system.

I want to thank Chief Justice Margaret Marshall for inviting me to join you. Over the last few years, she and I have had many discussions, at meetings of the Conference of Chief Justices and other venues, about ways in which the administration of justice can be improved. Her leadership as an outstanding innovator in court administration is nationally recognized, and her fellow Chief Justices across the United States have chosen her to head their organization for the coming year.

As you mark the five-year anniversary of the Report of the Visiting Committee on Management in the Courts, also known as the Monan Committee, it is appropriate both to celebrate the changes that have been instituted in your court system, and to look ahead to the challenges you will face in the coming years.

After reviewing materials on the report as well as evaluations of the manner in which the Judicial Branch of Massachusetts has implemented—and continues to implement—the recommendations contained in the report, I certainly understand that you have much to be proud of, and I know that California and other jurisdictions can—and will—learn from your achievements.

I also hope that I can offer some lessons from our California experience that can be of assistance as you continue to move forward. As observed by Justice Louis Brandeis, who was one of the many great contributions Massachusetts has made to our nation's legal system, the states serve as laboratories in which successful experiments can be made, and are shared, and this is certainly true of our respective court systems.

I want to begin by observing that, from my perspective as a judge for almost 36 years, I take great pride and satisfaction in the willingness of judiciaries across the nation to engage in self-examination and reflection aimed at improving the ability of the courts to better serve the public. The decision of the Supreme Judicial Court, led by Chief Justice Marshall, to appoint the Monan Committee provides an excellent example of the willingness of those of us who occupy leadership positions in the Judicial Branch of government to take a close look at every aspect of our system with the goal of developing the means to make our courts more responsive to the needs of our communities while enhancing our ability to manage the resources that are entrusted to us effectively and efficiently and in an accountable manner. Your actions since embarking upon this endeavor have proved conclusively that in Massachusetts, the courts are firmly and successfully committed to making the changes necessary to meet those dual responsibilities.

There are many similarities in the challenges facing the Massachusetts and California judicial systems, and your commonwealth and our state have embarked on strikingly similar paths in several areas. In both jurisdictions, those of us who serve in the judicial branch of government are faced with increasing demands and expectations from the public as we are urged to respond more rapidly in dealing with an ever-expanding caseload while still providing fair and accessible justice, and to provide facts and figures to justify our budget requests and demonstrate our responsible management of our share of government resources that are becoming more and more scarce. The courts clearly are not immune from the general call to do more with less.

The Monan Committee focused on making management and organizational changes to the courts. This direction comported with the committee's finding that, despite the high quality of judicial decision-making in Massachusetts, that achievement was "undermined by high cost, slow action, and poor service to the community." The changes recommended by the report not only were sweeping, but also required developing a new performance culture in the courts. And perhaps because judges are accustomed by training and experience to adhere to established precedent, it is usually not an easy task to bring about a change in judicial culture.

California's courts had a history of decentralized oversight, similar to that in Massachusetts, and we too have been engaged in a process of revising our traditional court structures and customs to meet modern needs. California's trial courts provided troubling variations in quality and service that were exacerbated not only by the tremendous diversity in our trial courts and in the communities in which they functioned, but also by the size and complexity of our system.

When I first became Chief Justice of California in 1996, I vowed to visit the courts in each of our state's 58 counties, an unprecedented outreach effort to foster a statewide perspective in a judicial system that operated like a conglomeration of more than 200 separate judicial fiefdoms rather than as a functioning, cohesive third branch of government. Completing this journey of more than 12,000 miles during my first year in this position, I found that the quality of justice being dispensed varied tremendously from county to county. At the same time, it was obvious that the dedication of judges and court staff was consistently high. Trial courts were financed primarily by the county in which they were situated, and the economic resources of a particular county—as well as the relationship (good or bad) between the local presiding judge and the county board of supervisors—resulted in wide differences in the financial support received by the local court.

The diversity of the 58 counties of our state presents some unique challenges. Courts range in size from those with the constitutional minimum of two judges in the smallest counties, the smallest with only 1,200 residents, to the Los Angeles Superior Court, which has almost 600 judicial officers serving some 10.3 million residents. Each year, more than 100 languages are translated in our courts, literally running the gamut from A to Z, Albanian to Zapotec. When I pointed this out to your Chief Justice, she retorted that in Massachusetts some 257 languages require translation. However, this difference may be accounted for by the circumstance that in California we do not count accents from different Boston neighborhoods as separate languages.

California's courts serve dense urban populations, rural communities, agricultural areas, mountainous, desert, and coastal regions, and every combination in between. There is no majority ethnic or racial group in California, and our population, rich in individuals from a variety of backgrounds, brings an enormous range of different attitudes, experiences, and understanding to the court process.

The overall size of our branch also magnifies the complexity of the challenges we face. I believe that Massachusetts has 411 judges. California has been described as having the largest law-trained judicial system in the world, with approximately 1700 general-jurisdiction judges, 450 court commissioners, 20,000 court employees, and a Judicial Branch budget of approximately 4 billion dollars. Our state's economy is ranked among the top 5 or 6 in the world, serving a population of approximately 38 million residents.

Addressing some of the inequities existing across county lines required a sea change in how we viewed our court system. Instead of a loosely joined confederation of individual courts, we determined that to make effective alterations we needed to reinforce the position of the court system as the judicial branch of government—independent and coequal to our sister branches, the Legislature and the Executive. To manage the court system, and thus be able to provide consistent administration of justice statewide, required developing strategies to strengthen the branch's administrative and managerial structures, something that you in Massachusetts clearly have been successful in accomplishing.

During my first year as Chief Justice, the structural and fiscal inequities in our system were causing trial courts to close some of their operations and contemplate substantial employee layoffs. That year I had to twice seek emergency bail-out funds from the Legislature to keep our trial courts afloat. This was no way to run a court system. We successfully decided to seek a switch from county funding to state funding—a change I believe was accomplished by statute in Massachusetts many years earlier, in 1978, and further implemented by the recent development of your sophisticated court staffing model that guides the allocation of resources. California's adoption of a system of state funding of trial court operations was the first of our three fundamental structural reforms to our judicial system achieved in the last decade.

As authorized by subsequent legislation, the Judicial Branch budget no longer is submitted to the Legislature as part of the Governor's budget, but is tendered by us directly to the Legislature, befitting our status as a coequal and separate branch of government. In addition, a state formula, based upon cost increases generated by caseload changes and other factors, provides automatic budget augmentations. In each of the last three budget cycles, this formula has automatically yielded an increase of more than $100 million for our trial courts without our having to request it. Budgeting is done on a statewide basis, with courts required to provide standard information that is used not only to formulate budget requests, but also to determine budget allocations.

We continue to seek funding for new programs, and to correct historic inequities among courts in different counties. This year and next, we will be facing challenges as a large statewide budget deficit of $14 to $16 billion threatens substantial cuts in the funding of all government operations in our state. But the recent changes in the method of funding California's court system enable us to ride out with greater stability the fluctuations caused by California's economic cycles.

One of the greatest and most persistent challenges we face in dealing with both budgetary and policy issues is explaining to our sister branches that the courts constitute an independent branch of government, not simply another agency of state government. Once in a while, when I perceive that my abbreviated civics lecture to a novice legislator is not sinking in, I have had to exclaim: "The judiciary is a separate, coequal branch of government—we are not like the Board of Cosmetology or the Department of Fish and Game."

Nationwide, there is a lack of understanding about the role of the Judicial Branch in our framework of government. A recent poll demonstrated that two out of three adult Americans are unable to name the three branches of government, and one of three is incapable of identifying even a single branch. More individuals could name the Three Stooges than could name the three branches of government. In California, the understanding, by our sister branches, of the court system and its place in our system of governance has been negatively impacted by term limits and the decreasing number of legislators who are lawyers.

Yet, the service that courts provide—administering justice—is one of the most fundamental components of our governmental structure, essential to our democratic system. The challenge we face, in difficult budget times and in the face of case filings that we do not control, is to convince those who provide the resources essential to the operation of the courts of the fundamental nature of our role—and to ensure that we make the best use of the resources allocated to us.

In addition to state funding, our system has benefited from a second major structural reform, the unification of our trial courts into a single level of general-jurisdiction court. California had a history of numerous court levels, with overlapping jurisdiction and disparate practices. In 1948, my predecessor, Chief Justice Phil Gibson, observed: "I have found that there are very few lawyers who can correctly name all the types of trial courts in the state." The court system then was comprised of six different and distinct types of inferior courts beneath the general jurisdiction superior court, totaling 767 courts, typically having overlapping jurisdiction with other tribunals.

By the time I made my initial round of visits to the courts of our state, two levels of court—municipal and superior—remained, with disparate jurisdictions and caseloads and duplicative clerk's offices, interpreter services, jury pools, and purchasing offices. At our request, the Legislature placed on the ballot a proposed constitutional amendment permitting the courts, on a county-by-county basis, to merge upon a majority vote of the judges of each level of court. Within a very few years, courts in every county elected to unify. The two levels of 220 courts became 58 superior courts, one in each county, and were integrated into a statewide structure. This has permitted our system to make more efficient use of all administrative resources, and at the same time, judicial resources now can be allocated to areas of greatest need, providing more flexibility to meet local circumstances.

Our third and final major structural reform, the transfer of California's courthouse facilities from county ownership and control to state ownership under judicial branch management, is underway. Before describing this undertaking, let me pause for a moment to state my admiration for the beautiful John Adams Courthouse in which we are meeting today. As an historic facility built more than a century ago, it reflects the importance our forebears accorded to the Judicial Branch and honors those who created a judicial system that has continued to serve us so well for more than 200 years. As the great British Prime Minister Winston Churchill observed, "We shape our buildings, thereafter they shape us." So it is with our historic courthouses.

Now that the counties no longer are responsible for the trial courts in California, it has not been not surprising that their interest in the state's courthouse facilities has waned, particularly in the light of competing demands upon local government resources. The process of transferring the courthouses to the state began with the enactment, at our urging, of the Trial Court Facilities Act in 2002. We expect within a year to complete this process and have all of California's 451 courthouses placed under the management of our Administrative Office of the Courts.

These three fundamental reforms have created a statewide court structure from which we have been able to launch systemwide improvements. These systemic changes have brought enormous change—and we still have a way to go before the outlines are filled in. Nevertheless, we now have a firm foundation from which our branch can approach challenges in a coordinated fashion.

The Judicial Council of California, a body created by constitutional amendment in the late 1920's, has assumed an increasingly important role in the management of our judicial branch. As Chief Justice of California, I chair the council and appoint most of its members—judges from our trial courts, intermediate appellate courts, and Supreme Court, as well as selected court administrators and heads of judicial and court commissioner organizations. The Legislature appoints two additional members from its ranks, and the State Bar appoints four attorney members. I also appoint a variety of advisory committees and task forces—hundreds of members drawn from the bench, the bar, and the community—to make recommendations to the council in areas of court practice and procedure, ranging from budget allocations to the adoption of uniform rules in various areas of practice. The council meets seven or eight times a year in two- or three-day sessions to consider these recommendations and to adopt policies and goals to guide the Judicial Branch, to allocate its almost $4 billion budget, and to oversee the work of the Administrative Office of the Courts.

Many of the functions of the Council and its committees are similar to those carried out by your Court Management Advisory Board and the Chief Justice for Administration and Management of the Trial Courts, Robert A. Mulligan. The California Supreme Court, however, unlike Massachusetts' high court, is not typically engaged in setting policy for the trial courts. That function is carried out by our Judicial Council and the Administrative Office of the Courts, which serves as the Council's administrative arm and is directed by our Administrative Director of the Courts.

The focus of the Massachusetts court system for the past five years—on the fundamental importance of managing and measuring its work—strongly resonates with me. The development of court staffing models and time standards and the tools to empirically measure the performance of the courts are all activities that have engaged California's Judicial Council for many years—and are areas with which we still struggle to some extent.

The authority granted to your Chief Justice and to your Supreme Judicial Court to effect change is in many ways stronger than that traditionally accorded in California to the Chief Justice and the Judicial Council. I was particularly impressed by the speed with which you have been able to adopt systems that provide reliable measures of your workload to allow intelligent allocation of resources and the development of budget requests. Like you, we in California have concluded that we must be able to accurately measure the work done by the courts. Concrete verifiable information is essential in planning and determining what is needed by the courts and where improvements in performance are indicated.

Massachusetts provides a truly progressive model of how to apply a sophisticated measurement process to produce the kind of information that enables courts to most effectively serve the public. Trial court departments in Massachusetts have time standards for all civil and criminal matters. In California, we began to implement delay-reduction standards and to track case dispositions in the early 1990s. Although our Judicial Council's annual report contains data reflecting compliance with time standards by individual courts, we are hampered in providing reliable data by the lack of a statewide case management system that would allow us to consistently measure case dispositions in our courts.

I have read with great interest and admiration about the development of a variety of measures implemented in your trial courts. In addition to time standards, you have adopted common metrics to measure the timely disposition of cases, set common goals based on these metrics, and are producing regular reports on what has been achieved thus far in striving to reach these goals. The progress you already have made is very impressive.

In California, we are in the process of developing and implementing such a case management system to assist us in obtaining consistently measured data from every county, but our history and demographics and the current budget picture make this a difficult undertaking. Because of different funding histories and resources, as well as locally adopted practices in individual courts, a host of different approaches to case management had developed. As of 18 months ago, there were at least 70 different case management systems in use, with varying degrees of sophistication. Some could not interact with other courts or with our judicial system partners. Others were primitive in today's technological environment.

In 2001, our system embarked upon the creation of a statewide system designed to provide "venue transparency" so that court users and the general public could conduct or observe court business from anywhere. Other goals of the system are to create uniform procedures so courts can adapt the system for their needs with minimum customizing, standardize court business practices, integrate with judicial system partners, and make use of the benefits of technology to better manage the courts.

In California, our Judicial Council has, for more than 10 years, engaged in a strategic planning process to guide us in making changes to better serve the needs of the public—and to enhance the judicial branch's ability to administer justice in a fair and accessible manner. We have engaged in studies of bias in the courts based on race, ethnicity, gender, sexual orientation, and disability, and our Access and Fairness Committee provides ongoing advice on measures designed to improve our court system's performance in this regard. We have created a Center for Children, Families, and the Courts to focus on the special needs of those most vulnerable members of our society.

California's judicial system has expended a great deal of effort to improve public access to the courts. The diversity I have described requires the adoption of a range of practices to assist individuals in effectively making use of the court system. The number of self-represented litigants continues to grow rapidly. In some of our courts, neither side has counsel in more than 80% of our family law cases—a figure I believe comparable to that in Massachusetts. Although courts cannot provide legal advice or appoint counsel in most civil cases, we can and must create programs that enable those without counsel to utilize the courts to address their needs. One of the most successful has been our nationally recognized self-help website, which receives millions of hits each year. We also have simplified forms and procedures for unrepresented litigants and have actively promoted increased pro bono services provided by members of the bar.

As noted, we have focused on creating better communication with our sister branches of government. Our Office of Governmental Affairs in Sacramento is a strong presence in advocating on behalf of the branch's priorities. Each year, I deliver in person a State of the Judiciary address to a joint session of the Legislature early in the year, discussing our accomplishments, describing the challenges we face, and explaining our needs.

A two-day visit to Sacramento by our Bench-Bar Coalition takes place concurrently with this event. The coalition is a group of judges and lawyers who attend the address and then personally meet with individual legislators to explain the Judicial Branch's needs and plans. The members of this coalition are drawn from across the state and stand ready throughout the legislative season to contact lawmakers in their district offices or at the State Capitol about issues of concern to the courts. I personally have dozens of meetings each year with the Governor, legislative leadership, other legislators, and our justice system partners—both at the State Capitol and in my chambers—to discuss the Judicial Branch's budget and policy initiatives.

This ongoing contact has proved invaluable in providing key information to legislators and encouraging positive action to meet the needs of the Judicial Branch. For example, a study by the National Center for State Courts concluded that California needed to add 350 additional trial judges. We concentrated on the 150 most urgently needed positions, and began advocating for the addition of 50 judges per year over the ensuing three years starting with the 2005-2006 legislative session. We have obtained authorization for the first 100 new positions and hope to receive the last 50 this year. Some other recent successes, among many made possible by cooperative efforts with the other two branches of government, have included substantial increases in judicial compensation, the creation of complex litigation programs and specialized collaborative justice programs, and jury reform.

Although the cycles of budget crises and surpluses undoubtedly will continue to plague us, we have achieved more stability and are far better equipped to handle these variations because of the changes we have undertaken. We know so much more about how our system operates, where and how resources are used, and where they are needed. These advances are crucial to our ability to ameliorate some of the difficulties visited upon our system by past, present, and future statewide fiscal crises.

Before I close, I want to focus on an issue of national importance that binds all state courts together in our quest to remain strong and independent defenders of the rule of law, a cornerstone of our democracy. I already have mentioned some of the challenges faced by our courts in educating our sister branches and the public-at-large about the importance of an impartial and effective Judicial Branch.

Threats to the judicial role periodically occur across the nation. These threats take many forms—judicial elections affected by the role of partisan considerations and special-interest groups, and by commercials aired during judicial campaigns that provide misleading information about the candidates and the judicial election process. In some instances, campaigns are waged against individual judges based upon a single decision, regardless of whether it comported with applicable law and the evidence presented to the court. Some campaigns are premised upon the failure of judges to fix problems that have never been brought before them in a case.

Your Chief Justice has spoken out about these threats and about the need for our judicial systems to work affirmatively with our partners to protect the fundamental role of the courts in administering justice fairly for all, under the rule of law. This is a critical challenge, perhaps even more so at a time when we are purporting to export our system of government abroad to emerging third-world nations. I believe it is incumbent upon all of us to preserve the familiar phrase "justice for all" as a functioning reality and not merely an ideal.

Massachusetts in so many ways has assumed a well-earned progressive leadership role in court administration. Your success is reflected in the recognition of so many individuals from your state as the heads of national judicial organizations. As I noted previously, the Chief Justice of your Supreme Judicial Court is the President-Elect of the Conference of Chief Justices and will also become Chair of the Board of Directors of the National Center for State Courts. The leader of the National Association of Court Management is from Massachusetts, as is the President of the National Association of Women Judges -and perhaps I had cause to wonder whether these phenomena can be explained by the circumstance that the head of the National Association of Court Public Information Officers also hails from the Commonwealth of Massachusetts.

But this national recognition truly is a validation of the important role Massachusetts has played in the development of new approaches to serving the needs of today's community.

Here in Massachusetts, you have provided an example of how a progressive, cohesive, and dedicated Judicial Branch can make changes that benefit the administration of justice and provide accountability to the public and to our sister branches of government. The people of Massachusetts are most fortunate to have a judiciary that has acted to truly make a difference in its ability to meet the needs of the public it serves. I congratulate you on your achievements in creating a comprehensive, enlightened, and effective approach to court management and administration that sets an example for other court systems across the nation to emulate.

Dean Pound observed many years ago that court reform is not for the short-winded. As one who has enjoyed competing in your Boston Marathon, I would add that court reform at times may seem like a race without a finish line. But I very much look forward to working with you and learning from you in the years ahead.

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