Chief Justice Speech - October 18, 2002

OPEN GOVERNMENT '02
California First Amendment Assembly
Remarks by Chief Justice Ronald M. George
San Jose, California
October 18, 2002

Good afternoon. I would like to thank Terry Francke for his invitation to address you today. The intersection of the media and the courts continues to be an evolving and fascinating area for discussion and consideration. 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 thoughtful weighing and consideration of what at times may seem to be competing interests and expectations.

We in the California court system have been exploring public access to information in a variety of contexts. As Chief Justice of California, I have a range of responsibilities that extends not only to the Supreme Court and the process of deciding individual cases, but also to the judicial system as a whole. I serve as chair of the Judicial Council, the constitutionally created entity charged with setting statewide policy for the administration of justice.

Interaction of the judicial system and the courts occurs under many circumstances. Courts decide specific cases in which members of the media are parties or will be affected by the rulings. The media has an obligation to report to the public about the courts and their functioning as an arm of government. And both the courts and the media also have a duty to the public to provide information about our system of justice that enhances access to the courts and enables individuals to better understand how our system operates.

I would like today to consider some of the ways in which courts and the media come into contact. First, I shall address the issue of access and public understanding, because this a matter of high priority for the Judicial Council. During the past several years, the council and its staff arm, the Administrative Office of the Courts, have focused major attention on improving access and fairness in the judicial system. Our system has undergone fundamental structural changes during that period which have significantly enhanced our ability to meet our goals.

First, in 1997, the Legislature enacted measures that transferred responsibility for funding of the local trial courts to the state. Previously, a bifurcated system allocating responsibility between the state and the counties had resulted in inequities in the ability of courts across California to dispense justice. The fiscal health of a county typically had profound effects on the local trial court. During my first year as Chief Justice, I had to approach the Legislature twice to obtain special emergency appropriations to bail out court systems that were in such dire straits that closure was a real possibility.

State funding has provided a stable source of support for our trial courts. As you are all aware, California currently is in a severe economic crisis, and government at every level is experiencing substantial reductions in revenues and resources. With a statewide system for funding, the judicial branch has been better able to spread the impact among the trial courts of the state, and has been working closely with individual courts to ameliorate the effects.

A second major change in the structure of the judicial branch was unification. This measure, adopted by an overwhelming majority of the voters in 1998, permitted courts, on a county-by-county basis, to vote to merge 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 considerable reductions in duplication as well as improvements in the flexibility and range of services that courts could provide. Within six months of the adoption of this provision, courts in 50 of 58 counties had unified. And early last year, I swore in the last 4 municipal court judges in California as members of the unified Superior Court of Kings County. In a short period of time, 220 trial courts have been consolidated into 58 courts-one court in each county.

Expectations proved correct, and unification has resulted in a substantial increase in services to the public, including more specialized courts handling drug, domestic violence, and juvenile mental health matters; increased use of technology; more assistance to and services for self-represented litigants; and generally more services in more court locations.

The third major structural reform was made possible when Governor Davis, less than three weeks ago, signed into law Senate Bill 1732, authored by Senator Martha Escutia, creating a process for transferring ownership and management responsibility for California's 451 courthouses from the counties to the state. This landmark legislation followed submission to the Legislature of a report by the state Task Force on Court Facilities. This group, with members from every branch of government, including the counties, undertook a three-year comprehensive study of California's courthouses. The results demonstrated an urgent need for repair, maintenance, or replacement of more than 90 percent of the courthouses.

The responsibility for court facilities had purposely been left for a later day at the time state funding was adopted. This created an anomalous situation. Courts, funded by the state, were located in facilities owned by the counties, which no longer had responsibility or much interest in their operations. Not surprisingly, counties often allocated their funds to other uses.

The transfer of facilities will take place between the years 2004 and 2007. The process is to be revenue-neutral for both the state and the counties. Necessary funding will be collected from dedicated increases in various fees and penalties, which have been determined with the cooperation and assistance of the bar and which will be collected in a fund set aside solely for court facilities. A bond measure may also be adopted in the future.

Under this legislation, the Judicial Council will be charged with administering all courthouse properties-which, by the way, will double the square footage of state-owned facilities from 10 million to 20 million useable square feet. The assumption by the state of this major responsibility for housing the judicial system-unique among the 50 states-is consistent with the positive trend toward treating the administration of justice as a state function.

These three major reforms have squarely placed on the judicial branch the responsibility for improved management and greater accountability. We have made enormous progress, although much remains to be done.

At the state level, we must provide better information to our sister branches in order to support our requests for appropriations. The Administrative Office of the Courts has been working closely with the Department of Finance and the Legislature to accomplish this. At the same time, it is working with the local courts to develop more standardized reporting procedures so that we can obtain the most reliable data.

The judicial branch is committed to providing public access to information about how the courts spend their money and how significant decisions in this regard are made. The Judicial Council adopted a rule requiring courts to provide quarterly financial reports, which are being made available to the public. Several courts have had difficulties in complying with this rule. These problems generally arise not out of an unwillingness to cooperate, but more out of a lack of knowledge as to how to carry out this mandate. The Administrative Office of the Courts is working with the local court leadership to improve this situation.

Much of what courts do, however, is done in confidence. The administration of justice involves decision-making processes that are not, by design, open to public view. There are many reasons for this. Among them are avoiding undue pressures and preserving the integrity, objectivity, and fairness of the judicial process.

Judges must decide matters based on the information provided by the parties and the applicable, constitutional provisions, statutes, and precedent. Judges are not representatives of the public in the same manner as other officials in our sister branches of government. They are not bound or swayed by the latest opinion polls or the wishes of the strongest interest groups-they are bound by the rule of law.

This does not, of course, generally require that court processes be performed in secret, or that the record upon which a judge bases his or her determinations be kept from public view. Only the most compelling circumstances, set forth by the judge, will justify deviation from the presumed openness of the proceedings.

The deliberative process, however, must be a confidential one in order to encourage unfettered participation by those involved. In the Supreme Court, for example, every case in which review is granted produces reams of drafts and memoranda. Ours is a collaborative process in which reflection, persuasion, review, and commentary are critical to formulating the final opinion of the court. The seven justices must be free to express their own views and criticisms as they formulate their decisions.

The court, as is true of any court, speaks through its decisions. Individual judges should not be expected to place a gloss on particular opinions after they have been rendered. Doing so would undermine the finality of the process and lead to uncertainty and confusion. Courts, particularly the Supreme Court, provide guidance not only to the parties before them in an individual case, but also to future litigants-and to individuals seeking to avoid litigation by complying with the law as it has been applied in their circumstances. Thus, finality and a uniform source of authority-namely written opinions and decisions-are essential to the proper operation of the law.

Courts have, however, become more hospitable to claims for information that previously may not have been released or made available due to long-standing-but often unexamined-practices or traditions. 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, just as had been well established in criminal proceedings. Only if the court articulates an "overriding interest" may the courtroom be closed.

This decision led to the adoption by the Judicial Council of rules that expressly recognize that the press and the public are entitled to court records unless confidentiality is required by statute or the rules of court. When I spoke to your organization two years ago, I described these new rules, which were then pending, as well as rules governing the presence of cameras in the courtroom. We continue to monitor both areas, but to date the new rules have served a beneficial purpose by providing interested individuals, and the courts, with guidance on when information or proceedings may be kept confidential and when they must be made public.

The rules governing when documents may be sealed became effective on January 1, 2001, and an article in the legal press this past summer suggested there were ambiguities in the new rules that impeded compliance with the rules and with the underlying principles of the Supreme Court's NBC decision. As a result, the Judicial Council has been studying modifications to the rules in order to alleviate these problems. In a similar vein, I note that the United States District Court for the Central District of California recently adopted a rule stating that a document may be filed under seal only with court approval-a change in procedure that was brought to its attention in part by inquiries from the First Amendment Coalition and various newspapers.

In another area, after long study, the Judicial Council adopted rules concerning access to electronic court records. We adopted a standard for access to specified records, while keeping others-in which broad dissemination about the parties or proceedings might create difficulties-under study. These rules represent a compromise among competing proposals and points of view. This is a subject that undoubtedly will be further reviewed and refined in the future.

At the same time, the California Supreme Court and Courts of Appeal have implemented procedures providing electronic access to their dockets that permit counsel, the media, and others to readily obtain information about matters pending before those courts. Individuals can ask to be placed on a notification list that automatically alerts them to activity in a case in which they are interested. Several trial courts provide similar services, but consistency still eludes us because of differences in the resources and expertise available to individual trial courts. This is an area in which we expect to see improvement in the not-too-distant future.

Another recent decision by the California Supreme Court, Filarsky v. Superior Court (2002) 28 Cal. 4th 419, also affects the public's access to information. The court, again in an opinion I authored, held that a superior court may not grant declaratory relief in an action brought by a public agency to determine whether the agency was obliged to disclose documents requested by a member of the public-even though the individual has not initiated litigation to enforce his or her request.

The court concluded that permitting such suits by a public agency would be contrary to the statutory scheme authorizing requests for disclosures by member of the public, and would "eliminate statutory protections and incentives for members of the public in seeking disclosure of public records, require them to defend civil actions they otherwise might not have commenced, and discourage them from requesting records pursuant to the act, thus frustrating the Legislature's purpose of furthering the fundamental right of every person in this state to have prompt access to information in the possession of public agencies."

There is more to public access and information than court decisions and rules concerning formal applications for information. The ability of courts to fulfill their functions depends upon the trust and confidence of the public we serve. As part of its policymaking duties, the Judicial Council has placed heavy emphasis on public outreach and education.

This effort has taken many forms. As part of its overall policy, the Judicial Council has urged individual courts to incorporate public participation in their long-range planning. The Judicial Council's standing committee on access and fairness continues to monitor the courts to determine whether there are areas that can be improved to ensure that all individuals are treated fairly-and to avoid even the appearance of bias or lack of impartiality.

One recent outreach effort in which the Supreme Court took part demonstrates the exciting possibilities in looking outside traditional court procedures. In the past few years, the court has held oral arguments sessions at locations other than its customary venues of San Francisco, Los Angeles, and Sacramento. Just last week, for the first time, we sat in Fresno in the courtroom of the Fifth District of the Court of Appeal. This was far more than a change in location-it created the opportunity for an unprecedented educational experience.

The court agreed to televise a morning session involving three exceptionally interesting cases, including the Rosenkrantz case involving judicial review of the Governor's parole actions in light of the separation of powers among our three branches of government. The Central Valley and Sacramento public broadcast stations, as well as the California Channel and 125 cable stations, carried the proceedings live to approximately 200 high schools up and down the Central Valley and to millions of viewers statewide. Curriculum materials had been prepared by court staff and by the local schools for use in the classrooms and were placed on the school districts' websites with a link from the court website, as well.

Some students were selected to view the oral arguments in person, and-before the arguments began-10 of them were permitted to come forward to the podium to pose questions directly to the 7 justices, concerning matters other than the cases at hand. It was an exciting and memorable exchange not only for the students but for the court. A photograph that appeared the next day in the Fresno Bee summed up the experience for me. It showed a young woman at the podium addressing the court. Her face showed eagerness, engagement, and even joy-a look that any instructor treasures on the face of a student. I cannot think of a better illustration of effective cooperation between the courts and the media, to the great benefit of the public we both serve.

Volunteer lawyers and judges assisted in the classrooms to guide the discussion concerning the televised court proceedings that the students had just observed. An article in the Los Angeles Times about a classroom session in Bakersfield gave a sense of the far-reaching discussions that ensued. And I understand that the Los Angeles Unified School District intends to rebroadcast the session to its own students in the near future.

Other California courts are also creatively and directly reaching out to the community, and the results have been very encouraging. This is just one way in which the judiciary of our state has taken seriously its responsibility to educate the public about what we do.

Another issue of great concern for the courts has been the increase in self-represented litigants, particularly in the crucially important area of family law. Courts and court processes traditionally are designed with the expectation that a lawyer will participate in the proceedings. Too many individuals, however, find that although they need the assistance of the courts, they cannot afford the assistance of an attorney.

Courts have implemented a number of measures to assist these litigants, including self-help kiosks; simplified forms; expanded legal services on site, developed in collaboration with local bar associations; and family law facilitators. In a couple of counties, the courts even send vans into remote areas to provide judicial services. The Judicial Council has created an excellent website for the courts, with background information; links to individual court websites; directories to legal services and to other services, such as domestic violence shelters; and postings of dockets, pending matters scheduled for the California Supreme Court's weekly conference, and recent opinions rendered by our Supreme Court and Courts of Appeal.

A little more than a year ago, a self-help link was added, providing extensive general information as well as specific how-to information on domestic violence restraining orders, family law, landlord-tenant and conservatorship proceedings, small claims and traffic matters, court access, and links to other resources and crucial information. Since its inception last summer, the site has had more than 17.5 million hits-interestingly enough, not only from unrepresented litigants but also from librarians, journalists, and even lawyers.

The issue of providing appropriate information to the public has arisen in yet another context that will call on both the courts and the media to carefully consider their roles. The United States Supreme Court, in the recent case of Republican Party of Minnesota v. White, ruled invalid a provision of that state's Judicial Code of Ethics precluding judges from speaking publicly about their views on issues that might come before the courts for decision. The provision that was struck down was adopted following a model provision circulated by the American Bar Association as part of its Model Code of Ethics for Judges. The high court's opinion found that Minnesota's judicial ethics provision was too restrictive of the right of free speech and was therefore invalid. Portions of the court's opinion suggested that almost all limitations on speech by judges during elections might be impermissible.

In my view, there is a distinction between judicial elections and elections for other government officials. The predilections and preferences of the individual judge should not be the measure by which judicial conduct is [evaluated]. The question should be whether the judge has properly followed the law, irrespective of his or her individual inclinations.

Certainly there are times at which the philosophical inclinations that a judge brings to his or her role may have an impact on the ultimate decision rendered. But I believe that it will be a grave disservice to our system of justice if elections for judges focus primarily on individual political beliefs and campaign promises, rather than on an individual's ability to be fair and objective and to conform to the rule of law.

If judicial elections are decided based on political preferences, that will undoubtedly have an adverse impact on the administration of justice. The reason is simple: if a judge is elected because he or she has appealed to voters based on explicit political beliefs and commitments, that judge-in order to win re-election-may well feel compelled to decide cases in a manner consistent with the preferences of his or her political supporters rather than based upon the evidence presented and the governing legal principles.

Those who serve as judges of necessity bring to the bench pre-existing beliefs and ideological preferences. But they are supposed to set them aside in deciding cases. If judges are asked to share their personal views on legal issues with the electorate, and the electorate bases its votes upon those views, it is to be expected the voters will look with disfavor on decisions that conflict with those views-even those decisions compelled by the law.

The media will have a very important role to play as the permissible scope of judicial comment during judicial elections is spelled out by ensuing case law and ethical standards. It will be up to you to help explain to the public the difference between the role played by judges in our governmental structure and that played by the public's representatives in the legislative and executive branches. The public will look to the media for leadership in applying appropriate criteria to evaluate the performance of a judge or the merits of a candidate for judicial office. This is a subject in which I believe that we can and should continue to work together.

As you can see, there are many ways in which the fourth estate and the third branch intersect. Before I close, I want to mention a recent poll showing an increasing number of Americans who, when read the text of the First Amendment, opined that it went too far. As you are well aware, skepticism about the right to free speech is not a new phenomenon. Previous inquiries have resulted in similar findings. Nevertheless, the number of those questioning that right seems to be increasing.

Protecting the First Amendment is an enterprise in which both the media and the courts have a strong interest. Since the tragic events of September 11, 2001, free speech, a free press, and an independent judiciary have been subjects that have surfaced in a number of contexts. Each of these vital components in our democratic system of government depends upon the health and strength of the others. And ensuring the continuing vitality of our liberties and the independence of the judiciary in these difficult times remains essential in preserving the fundamental principles of our society.

The media and the courts will continue to have points on which we disagree, and others as to which we are in concert. The press and an independent judiciary are in a unique position to support each other in the performance of our respective obligations and service to the public. The tensions that sometimes arise between us are signs of the health of our society. The dialogue between our different enterprises is ever-changing-but the underlying principles guiding us remain the same: serving the public, enabling our democracy to function, and ensuring the openness of our process, all while fulfilling our difficult roles.

These are challenges that the judicial branch has embraced enthusiastically as we seek novel and effective ways to meet the needs of the public. New laws, new technologies, new crises, and new expectations will affect the media and the courts in ways that we cannot fathom today but that will confront us with urgency tomorrow. I look forward to continuing our dialogue on these matters in the future.

Thank you for giving me the opportunity to converse with you here today. If your schedule permits, I shall be pleased to attempt to respond to any questions concerning the administration of justice in our state and the operations of the California Supreme Court, excluding specific cases or legal issues.

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