Chief Justice Speech - September 27, 2008

STATE OF THE JUDICIARY
STATE BAR CONVENTION
CONFERENCE OF DELEGATES
CHIEF JUSTICE RONALD M. GEORGE
MONTEREY, CALIFORNIA
SATURDAY, SEPTEMBER 27, 2008—10:45 A.M.

Good morning. I want to begin by thanking Jeff Bleich and the State Bar's Board of Governors for their exceptional service over the past year. They have been staunch supporters of the judicial branch, and have never hesitated to promote the importance of the administration of justice—both to the public as well as at the State Capitol. Under their leadership, the Bar also has been fully engaged in pursuing its own programs designed to benefit the legal profession while furthering the public interest. The Bar's talented staff, led by Executive Director Judy Johnson, continues to serve with distinction and dedication.

Congratulations to Holly Fujie on her election as the 84th President of the State Bar. The Supreme Court, and I personally, look forward to working with her and the new board in the coming year.

It has been touch-and-go in how to structure these remarks to you today. Fortunately, the adoption of a budget signed earlier this week has provided some certainty about the resources that will be available to the judicial branch in the coming year.

For all of us, however, looking ahead to the next fiscal year, whether personally or institutionally, is a daunting prospect. Arguably, the economic upheaval on the national level to some degree makes any planning an exercise in optimism. But it is also an exercise in practicality. Setting goals and determining how best to allocate resources remains essential to ensuring the best administration of government for our state.

California's judicial branch cannot wait for the economy to return to health before considering how best to serve the public. There simply are too many challenges to meet—with or without much-needed additional resources—that must be dealt with now.

Since I last spoke to you a year ago, we have seen some notable advances—and at the same time have confronted the anticipated effects of having restricted resources in the near future. The Governor's signature on the recent state budget agreement enables us to determine with more certainty what will be available for the courts. Like the rest of state government, the judicial branch will do its part and carry out its responsibilities with less funding—more precisely, with a reduction of $256 million. Fortunately, a large portion of this sum will be one-time reductions, allowing our base budget to return to the higher level when we start the process over again for the next fiscal year.

A key role for the Judicial Council, the constitutional body which I chair as Chief Justice and which is responsible for the oversight of the statewide administration of justice in California, is presenting budget proposals to the Governor and the Legislature, and then allocating to individual courts and programs the appropriations provided to us by our sister branches. The Council's work is greatly aided by the Trial Court Budget Group, whose members are Presiding Judges and Chief Executive Officers from courts around the state. The Administrative Office of the Courts, led by Bill Vickrey and his Chief Deputy Director, Ron Overholt, are the staff arm of the Council and greatly assist it in carrying out its policies. The Council will be meeting soon to consider the recommendations of the Budget Group on distributions to the individual trial courts.

Three years ago we anticipated that by this time, we would see a full complement of 150 new judgeships filled and funded. The promise of badly-needed new judgeships has been realized in part, but the state's budget situation has caused many of the positions to be deferred—but at least resulting in financial savings that have been credited against the budget cuts that the judicial branch has been expected to take in doing its part to help the state get through these difficult economic times.

As of today, 50 judgeships have been created and filled along with the provision of funds to support them. Fifty more judgeships have been created, but the necessary funding has been deferred until July 1 of next year. We remain hopeful that in the coming legislative session, we shall see the creation of the final 50 positions with funding soon to follow. Meanwhile, under new statutory authorization, we continue to certify up to 16 vacant commissioner positions each year, for the next 10 years, for conversion into full judicial positions.

Seeking new positions in a time of fiscal downturn may seem like tilting at windmills—but delays in processing cases, both criminal and civil, strike at the very heart of society. No one seriously disputes the need for the new positions. Families deserve speedy and fair determinations. Businesses need to have relevant issues settled in a timely fashion. The public and defendants alike require the effective adjudication of criminal matters.

In the summer of 2007, we began to respond to the urgent situation in the Riverside County Superior Court, which had ceased to try civil cases, and in which the resolution of criminal matters was in some instances delayed for years. Using existing Judicial Council resources, with no additional appropriation from the Legislature, I created a task force of experienced criminal judges, drawn from both active and retired jurists. The task force was led by Justice Richard Huffman, from the Fourth Appellate District. Judge David Wesley of the Los Angeles County Superior Court, and Judge Richard Couzens, retired from the Placer County Superior Court, supervised the judges in the task force and assigned the cases.

At the same time, the leadership of the Task Force worked with the legal community, including the judges, the district attorney, the public defender, and the local bar association, to see whether making changes to local legal practice and culture could help avoid the excessive delays that plagued Riverside. Those problems, of course, are in large measure a product of the explosive growth in population in the Inland Empire area.

The task force members completed 208 trials, including several death penalty cases, and a large number of other serious felony matters. The assigned judges handled more than 800 additional matters.

When the Task Force arrived, cases from the 1990's were pending. When it ceased operations, the oldest case pending was from 2004. Needless to say, Riverside ranks high on the list for the allocation of the new judicial positions we have been seeking.

Other counties, such as Sacramento and San Bernardino, also have been struggling with the effects of having too few judicial officers. The problems of increased population and increased demands on court services are not confined to one area of the state, and we must work together to resolve them—including obtaining funding for critically needed new judicial positions. The California Judges Association and the Bar have been very supportive of these efforts.

Another area of the Council's focus has been creating an integrated case management system for the courts. Pilot projects already have been implemented, and are functioning well. The major obstacle again is obtaining adequate funding, but we continue to make progress on this vital long-term project. An integrated system will permit electronic filing statewide and allow attorneys to have access to up-to-the minute information on pending cases. It will enable the timely updating of state criminal history files—40 percent of which do not have current information. Meanwhile, the domestic violence registry lags in receiving current information, while accurate data about recalled and issued warrants, other charges and sentences, and case closures often are seriously out-of-date.

Without current information, we shall continue to have instances in which contradictory orders are issued by different courts in the same county—because a judge in one courtroom is unaware of another, related case.

Functioning at the heart of the criminal and civil justice system, courts must be able to communicate effectively within the judicial branch itself, as well as with their justice-system partners, such as the Department of Justice and law enforcement agencies, as well as the public.

Our judicial branch has undergone enormous change during the past decade. Eleven years ago, when I appeared before the Conference of Delegates to deliver my second State of the Judiciary Address, I had to make last-minute changes to my remarks based on the Legislature's adoption—in the early morning hours of that same day—of the long-sought bill to institute state funding for the trial courts in place of the existing system of county-by-county funding. That change, followed by unification of California's 220 municipal and superior courts into a single level of trial court, has made the judiciary into a separate, independent, and coequal branch of government not just in theory, but as a reality. These fundamental structural reforms have enabled us to use our resources more effectively and, most importantly, has led to improved services to the public.

One major subject area still remained to be addressed: ensuring adequate court facilities. When courts were locally funded, county ownership of court facilities made sense. The shift to state funding and to a single level of trial court made statewide management of courthouses the next logical step.

A comprehensive study of the state's 451 courthouses and the needs of local courts led to enactment of the Trial Court Facilities Act of 2002, which provided a mechanism permitting counties to transfer courthouses to state ownership under judicial branch management. The Act required adjustment as it became clear that far more courthouses than expected were in seismically deficient condition, making transfer to the state unlikely. Finally, we were successful in obtaining enactment of legislation permitting counties to be relieved of the expense of upgrading their facilities—in exchange for retaining their liability (for a period of 35 years) for injury and damage caused by seismic defects.

Seventy percent of all court facilities were built before 1980. Some counties have invested in these structures and other counties, due to insufficient resources and competing priorities, have not.

Not too surprisingly, it has not been easy to find adequate resources to undertake essential renovations and building projects. We estimate the long term costs of replacing or upgrading all courthouses at $9.6 billion. Previous efforts to use general obligation bonds, which draw on the state's general fund and therefore require voter approval, have been unsuccessful.

Three weeks ago, however, the Legislature passed Senate Bill 1407, authored by Senate President pro Tem Don Perata, landmark legislation sponsored by the judicial branch to authorize the issuance of $5 billion in revenue bonds to be used for building and renovating court facilities. This measure would not impact the state's general fund and thus would not require voter approval. It would be funded by court users through increases in filing fees, fines and assessments, traffic and parking fines, and a new fee on out-of-state attorneys who wish to practice in our courts.

The Governor was very enthusiastic about this measure when I last met with him in August, and I have been very hopeful he would sign it. As with the Trial Court Funding Act in 1997, there must be some magic in coming to address you, causing me to make some last-minute revisions to my address. Late yesterday afternoon, I received the exciting news that the Governor has signed the bill. We look forward to the implementation of this mammoth historic project.

The revenue plan for the bond was arrived at in consultation with representatives of various affected segments of the judicial and legal community and the public. The California Judges Association was a strong and persuasive supporter, as were the plaintiffs' bar and the defense bar despite their traditional reluctance to increase fees. Although no one relishes this prospect, it was generally agreed that the urgent state of court facilities warranted such action. Virtually every major newspaper in California in its editorials has endorsed this funding approach in light of the present fiscal circumstances of the state. And given the Judicial Council's commitment to enhancing access to the courts, judicial officers will be exercising their traditional authority to waive fees in appropriate cases. No one will be denied access to the courts because of his or her inability to pay filing fees.

Five billion dollars sounds like—and is—a very large sum. It will finance approximately 40 out of 68 projects that we have classified as demonstrating "Immediate and Critical Needs" in order of such priority. In addition, the money will fund some lesser repairs, such as replacing roofs, repairing exteriors, and upgrading or replacing safety, heating, and cooling systems.

Why is this project so important? The needs of California courthouse users—and their physical safety—have been placed at serious risk by decades of neglect while these facilities remained the responsibility of the respective counties. In many courthouses, prisoners must be escorted through public and staff corridors, causing major security risks. Many holding cell areas are dysfunctional and insufficient for the court's needs. Inadequate accessibility for disabled individuals, deficient life and safety systems, and deterioration in basic building amenities threaten the health and safety of those who work in or enter our courthouses—as litigants, lawyers, jurors, witnesses, employees, or persons seeking copies of official documents.

Some facilities do not meet present earthquake standards. Others simply are overcrowded. In some locations, jurors have no assemblyroom and must stand or wait in stairwells, halls, or even outdoors. There are staff and judges who work in converted closets. Public corridors are too small and heighten the risk of encounters between gang members, angry spouses, witnesses, or the families of victims and defendants. Services are scattered among several locations, and some courts operate in trailers or leased space, not built to current security or other standards.

In short, too often the administration of justice is thwarted and even threatened by inadequate facilities.

A number of other important bills of interest to us await the Governor's signature. Assembly Bill 3050, authored by Dave Jones, Chair of the Assembly Judiciary Committee, covers a number of important subjects in protecting and assisting the public's use of the legal system. For example, the bill would limit the use of the term "legal aid" or any confusingly similar term to those organizations that meet specified requirements. The same bill would enable the Judicial Council to enter into agreements that will provide for telephone appearances in civil cases, set the fees for such appearances at a cost still less to the client than the cost of a personal appearance by counsel, and then designate a portion of this revenue for deposit in the Trial Court Trust Fund to be used to implement and administer a very important pilot interpreter program for civil cases.

A Judicial Council working group will identify best practices for interpreter services, including training, and the Council will apply those practices in pilot projects to commence by July 1, 2010 in five courts. Interpreter services are to be provided to in forma pauperis litigants in specified actions under the Family Code, unlawful detainer, probate guardian and conservator proceedings, and actions under the Elder Abuse and Dependent Adult Civil Protection Act. If there is sufficient funding, interpreters may be provided in other civil actions as well.

This historic measure recognizes and reinforces the fundamental adage that meaningful access to justice requires the ability to understand the proceedings. Particularly in light of the many self-represented litigants with inadequate language skills—more than 100 languages are translated annually in California's courts—AB 3050 marks a major step forward in meeting a substantial need that will make the judicial system truly available to those needing its services.

The judicial system also has sought—thus far unsuccessfully—to fund three pilot projects to provide legal representation in civil cases in which fundamental rights are at issue, and we shall continue to pursue an appropriation for this purpose. Just as the U.S. Supreme Court's landmark decision in Gideon v. Wainwright recognized the importance of counsel in criminal cases where individual liberty is at stake, counsel may be just as essential in those civil proceedings that affect the most fundamental aspects of individual lives.

The Elkins Task Force, which I appointed earlier this year, is reviewing the barriers posed by local court rules and practices to pro per litigants as well as to attorneys providing representation in family law cases. Included in its charge is considering recommendations to increase affordable representation.

Speaking of self-represented parties, in some counties the number of such litigants has reached 85 to 90 percent in family law matters. You can help alleviate this situation directly by offering pro bono assistance, or indirectly by making a donation—either on your State Bar dues bill through the convenient check-off for the Justice Gap Fund, or to any legal aid organization you choose. Your contribution, in kind or in cash, can make an enormous difference in someone's life.

Meanwhile, the Commission for Impartial Courts that I have appointed, under the leadership of my colleague Justice Ming Chin, continues its work and recently delivered an interim report to the Judicial Council. Its task of coming up with practical recommendations to preserve and enhance the independence and strength of our judicial branch is vital and requires continuing effort. We look forward to the commission's final report next year—and to working with you to ensure that our courts remain impartial and open to all. I appreciate that the Bar certainly has been stalwart in its defense of an independent judiciary.

At a hearing in January in Sacramento before the California Commission on the Fair Administration of Justice, I testified in support of the Supreme Court's proposal to ameliorate the impact of pending death penalty cases on the court's ability to settle conflicts and important questions of law in civil and noncapital criminal cases. This draft constitutional amendment would give the Supreme Court discretion to transfer fully briefed death penalty appeals to the Courts of Appeal for decision—just as the court has for any other type of case—and thereafter expanded discretion to grant review in appropriate capital cases.

The California Commission on the Fair Administration of Justice has endorsed this proposal—but with a proviso. It made it clear that the various entities and agencies—the Attorney General's Office, the Office of the State Public Defender, the Habeas Corpus Resource Center, the California Appellate Project and, finally, private counsel who agree to represent appellants in these cases—all must be adequately funded before this new approach is pursued. That is a proviso the court is very willing to embrace. Changing the system without providing sufficient resources to allow all the affected entities to do their job would be pointless.

And so, we return to the topic with which I began—adequate funding. The judicial branch is likely to be faced with some very hard decisions in the future about where to allocate scarce resources, and how to stretch the dollars we have. But that should not discourage us from moving forward and working together to improve the administration of justice in our state.

I know that every day, the State Bar of California, along with local and specialty bar associations across the state and individual lawyers, are engaged in efforts to provide legal representation, offer other assistance, study problem areas, and suggest solutions to improve our legal and judicial systems.

On behalf of the Judicial Branch of California, I want to express my great appreciation to you for these efforts and achievements as members of the nation's pre-eminent State Bar association. I personally look forward to continuing to work with you in the future in our mutual commitment to ensure that California remains a leader in providing fair and accessible justice for all.

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