AMERICAN JUDGES ASSOCIATION
CHIEF JUSTICE RONALD M. GEORGE
OCTOBER 25, 2004
Good morning. As Chief Justice of California, I want to extend to you a warm welcome to California and particularly to San Francisco. I am pleased that so many judges from across the United States and Canada have chosen to meet here to discuss issues of common interest.
The themes running through your sessions are ones that interest all of us as jurists - and should be of interest to all members of the public as well. Court have often been cited as the "weakest" branch of government - but increasingly courts are realizing that does not mean they can or should remain silent or passive and allow our sister branches to determine our fate. Court governance and leadership, eliminating bias, improving access, and judicial independence are critical areas upon which we must focus. They are necessary factors not only in preserving the strength of the judicial branch in our state and federal governmental structures - but also in ensuring that our nation continues at every level to be governed by the rule of law.
The significance of the traditional notion of judicial independence has been highlighted by a number of recent trends. Lately, many of us have come to realize - with more and more force - that judicial independence, deeply engrained though it is in our national and local cultures, cannot ever be taken for granted.
There is continuing uncertainty surrounding permissible judicial speech following the United State Supreme Court's decision in Republican Party of Minnesota versus White. The increasing politicization of judicial selections - whether by election or appointment - at the national and state levels has profound implications for the administration of justice and the counter-majoritarian role of courts. Legislative decisions on court funding made in response to unpopular decisions, partisan interpretations of decisions based purely on results, and threats of recall and opposition are heard with dismaying regularity.
We in California have no magic bullet to solve the difficult question of preserving judicial independence - but we have taken a wide variety of approaches to make a difference. You may find some of them of interest in your home jurisdictions. Moreover, as the immediate past President of the Conference of Chief Justices, I can assure you that Chief Justices in your states by and large also are deeply committed to taking steps to preserve judicial independence.
We in California have focused on two components we consider essential to judicial independence. The first is the very essence of the judicial function: independence and fairness in decision-making. Courts, in order to fulfill their constitutional obligations, of course must be free to decide cases based upon their merits. The goal of the judicial branch is to uphold and enhance the rule of law, while - unlike the representative branches of government - remaining unswayed by personal preferences or the latest opinion polls.
Courts, of course, rely on the trust and confidence of the public we serve. As Chief Justice of California, I chair the Judicial Council, the constitutionally-created entity charged with setting statewide policy for California's judicial system. Among our major goals have been ensuring access and fairness and strengthening and preserving the independence of the judicial branch. To that end, we have undertaken a wide array of educational and informational programs aimed at both those who work in the courts and those served by the courts. Eliminating bias is a subject integrated into the core curriculum of the Center for Judicial Education, our premiere provider of judicial and staff educations. In addition to substantive material, courses provide extensive information on ethics, administrative and managerial responsibilities, and community involvement.
Courts in turn are reaching out to their communities through programs coordinated with community groups, school projects, and educational public forums. For example, the California Supreme Court has, for the past few years, held one session each year in a location different from its standard venues. In each instance, the local Court of Appeal district, in coordination with the local courts, educational establishments, and bar associations, have created extensive materials about the cases scheduled for oral argument. These are made available for use by hundreds, and sometimes thousands, of students - some in attendance in the courtroom, others by television, and all with informed teachers, judges, and lawyers at hand to lead discussions and answer questions. A statewide public service cable network also has broadcast each of these hearings to large portions of the state. We have electronically expanded the walls of the courtroom and the classroom.
Our local courts engage in regular planning and involve their communities in discussions about how better to serve the public's needs. Judges are available as speakers for community groups and public forums, and actively participate in activities aimed at improving the administration of justice to a degree consistent with ethical constraints.
These are only some of the steps courts are taking - but they are emblematic of how seriously we take our obligation to inform and involve the public in order to foster greater confidence - in and understanding of - the role of an independent judiciary.
The response from the public has been overwhelming and enthusiastic. The justices of our six Courts of Appeal also have moved out of their chambers and into the community to hold sessions in different parts of their geographic jurisdiction and to coordinate with local schools to make these sessions rich and engaging educational tools.
The second component of judicial independence - which sometimes receives less attention than the first, but is key to ensuring the strength of the first - is institutional independence. Courts must secure adequate funding so they can remain immune to financial threats and pressures.
This critical need for certainty in fiscal support for the judicial branch is not a novel notion. For example, one can find reference to it in the early history of our nation. Alexander Hamilton, discussing in Federalist Paper Number 79 the proposed provision forbidding any decreases in the compensation of judges during their term of office, made an observation that applies generally to the judicial branch: "We can never hope to see realized in practice the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter."
In California, our quest for establishing predictable, adequate funding for courts statewide has acquired more and more urgency. The demands and expectations placed on the judicial branch have greatly expanded as the diversity and complexity of our state has grown. By the early 1990's, the situation had become critical. The existing combination of individual county support for local courts and limited state support resulted in major variations in the administration of justice from courthouse to courthouse.
It became impossible to ignore the gross inadequacies of the fiscal structure as some courts came perilously close to bankruptcy, and others cut back vital services to the public in order to retain the ability to maintain core programs. The range of services for the public, the time to get to trial, the hours of clerk's office access, all differed from county to county. Consistency in the actual administration of justice was elusive at best, and in some areas the ability of courts to serve public needs was at grave risk.
After long years of discussion and advocacy among the courts, the counties, and our sister branches of government, legislation was enacted in 1997 shifting from the courties to the state the responsibility for funding the trial courts. This was a major curative step toward equalizing adequate services statewide.
The following year, in 1998, our trial courts began another fundamental revision pursuant to a constitutional amendment that we persuaded the Legislature to place on the ballot. County by county, the municipal and superior courts decided to merge into one level of trial court. Some 220 trial courts in the state became 58 courts - one in each county.
These structural changes not only guaranteed more stable and dependable funding across California, but also helped solidify the court system as not merely a loosely affiliated group of individual venues, but as a more fully realized branch of government with a statewide perspective and presence.
The benefits of this approach have been reflected in the growth of California's judicial branch budget during the past four years. Despite a very shaky start to the budget process at the beginning of the current year, and the generally gloomy figure for our state's fiscal outlook, after meetings and negotiations I and members of our staff had with the Govenor and his staff, he agreed to budget revisions that resulted in adding almost $100 million to our current final trial court budget, which amounts to $2.31 billion - a 4.4% increase over the prior year and part of an overall 16 % increase in trial court funding since fiscal year 2000-2001. I should note here that we have more than 1600 judges in California, plus approximately 400 court commissioners and referees. Our system is the largest in the United States, far surpassing the size of the federal court system, and one of the largest in the Western world.
The bottom line in dollars and cents for our system's current fiscal year is a budget that still does not meet all the needs of our branch - but one that allows courts to maintain services for the public at a reasonable level. Some courts have reduced hours of service and cutback certain programs, but by and large, courts have been able to cope.
The improvement in the judicial branch's situation this year resulted in large part from hearings on court needs and the impact of court programs that were held up and down the state, including one hearing conducted before the Judicial Council.
We heard one particularly striking joint presentation. The first speaker was a CASA worker - a Court Appointed Special Advocate - who told the story of meeting a 16-year old girl in juvenile hall who was trying to provide her younger siblings with the stability their parents could not, but who had succumbed to the drug and alcohol abuse she had learned from those same parents. This young woman had made remarkable progress, overcoming her addiction, finishing high school, going on for more education, and returning as a counselor to the drug rehabilitation center that had helped her.
The former client then began to read a prepared statement on what the CASA volunteer had done for her. She soon lost her composure ¾ as did many others in the room ¾ as she explained in direct words how the volunteer's support and belief in her had changed her life.
This was one of several presentations that brought home the positive effect court services can have on individual lives. The hearing conducted before the Judicial Council was broadcast over the California Channel, and not long afterwards, I received a letter from the President of the United Domestic Workers of America stating that his organization wished to make a donation to the CASA program.
The recent budget cycle involved more than successful advocacy to restore judicial branch resources to a manageable level. A budget trailer bill, strongly supported by legislative leadership of both parties, the Governor, and the state and local bar associations, included important revisions to the process by which our judicial branch budget is considered by the other branches ¾ revisions that will enhance the judiciary's position as a co-equal, strong, and effective branch.
Under the new approach, an automatic adjustment to the base funding for trial court operating costs will be included each new budget year. The figure is determined through a formula that includes changes in per capita personal income and changes in population. The assumption will be that the new budget will include these adjustments from the past year, rather than potentially starting again from zero with a need to rejustify the base budget each year.
In addition, under the new budget process, our proposed budget for the trial courts will be submitted concurrently to both the Legislature and the Governor. Under the existing procedure, the budget had been submitted initially to the Governor, and only those items approved by the Department of Finance were included in the budget proposal presented by the Governor to the Legislature and hopefully advocated by his staff on our behalf.
This may sound highly technical - and, undoubtedly, the details will be arcane to those not steeped in state budget terminology. The fundamental message, however, is far from technical - we have accomplished a sea-change in our branch's relationship with its sister branches. The judiciary's budget no longer will be treated as that of just another state agency, but instead will be accorded the deference and consideration due an equal branch of government.
This does not mean that California's courts will have free rein to demand increases. Far from it. The process contemplated is a collaborative one, in which the judicial branch has the responsibility to carefully and completely justify its budget requests. But changes in judicial branch governance during the past several years have made that a far easier task.
These modifications ultimately benefit the judicial branch, the state, and the public at large by establishing responsible - and responsive - growth. As a result of the revised budget structure, we anticipate a new era of predictable and stable funding, equal funding across the state, and adequate funding to permit quality operations to meet the public's needs.
The third prong of our structural reform lies in the physical surroundings of the court. Our judicial branch has actively sought the authority and the resources to acquire courthouse facilities from the counties that now own them. Once funding for the trial courts shifted from a local responsibility to a state obligation, it no longer made sense for the counties to own and maintain existing and future court facilities. Some of these courthouses are structurally unsafe and need to be replaced.
The Court Facilities Act, enacted at our urging in 2002, provides the authority to start the transfer of the 451 court facilities in California from the counties to the Judicial Branch. This year's budget grants more than $23 million in expenditure authority to support required staff to oversee the transfer of facilities and to plan and oversee the construction of new facilities.
The facilities transfer measure is predicated on self-funding through filing fees and a re-direction of court-generated revenue to flow to a state courthouse construction fund instead of to the counties. The funding will be supplemented by a future bond measure, which is expected to be on the ballot in 2006. This is the largest anticipated transfer of courthouse ownership to a judicial branch in the nation - involving about $4 billion and 10 million square feet of useable space. The basic concept of courts controlling their own physical environment - and specifically the judicial branch rather than a bureaucratic agency of state government exercising this control - apparently is a novel one that we anticipate will have tremendous benefits to our system. We no longer will have to compete with schools, police and fire services, and emergency rooms at the county level. Instead, there will be a reliable income stream, which we will manage in providing and maintaining necessary facilities for the courts.
I have spoken about the important structural changes we have made, and our emphasis on education. These measures have given us a more stable base from which to concentrate on our goal of improving our relationship with the public - in order to effectively administer justice for all and to ensure a strong and independent judicial system.
It has been repeatedly demonstrated that courts achieve their greatest successes in enhancing their service to the public when the judicial system collaborates with other interested and affected segments of the community, including, of course, the bar.
The word "court" traditionally conjures up a vision of two lawyers standing before a black-robed judge seated on an elevated bench, arguing a matter that the judge will resolve by rendering a decision. That decision then will be carried out by the parties - usually outside the sight of the court. The gulf between that vision and the reality of our courts today perhaps has never been greater.
In many proceedings in California, particularly in family law, neither party to a dispute has a lawyer or can obtain one. Many of California's courts report that 80% of those persons seeking a divorce or child custody or child support are not represented by counsel, and that the same is true of 90% of those persons seeking domestic violence restraining orders and 90% of the tenants in landlord/tenant cases.
Reflecting California's increasingly multicultural society, a growing number of our state's litigants do not speak English but instead one of the approximately 100 languages that are translated every year in California's courts - literally running the gamut from "A" to "Z" - Albanian to Zapotec. These changes in the population of those who come before the courts challenge our preconceptions about the courts - and demand of us that we respond creatively.
Ensuring effective access based on community needs is critical to the ability of the courts to meet the changing expectations and needs of the public. Access to justice signifies far more than providing an open courthouse door - it includes allowing meaningful access so that individuals can vindicate their rights.
The resolution of a legal issue can profoundly affect an individual's future. Will a family be able to stay together? Can a disabled child obtain the care and assistance to which she is entitled? Can an elderly homeowner keep her only asset, her home? Will the veteran whose life has been derailed by substance-abuse find his way back to a productive life?
Often the small cases that set no precedent nonetheless will have a life-changing impact on an individual or a family. When we speak of policies to improve access and of making services available to a broader segment of the community, it is easy to think in merely abstract terms. In California, we have tried hard never to lose sight of the fact that real people with real problems are involved - and that with what is often a remarkably small investment of time, individual lives can be turned around. In the final analysis, it is our ability to provide justice for all that creates our strength. How well we succeed in this endeavor says much about us as a society.
When I became Chief Justice of California in 1996, I was invited to deliver a State of the Judiciary Address two weeks later to a joint session of the Legislature. During that address, which has become an annual tradition, I made a commitment that some thought I should be committed for making - which was to visit the courts in each of California's 58 counties, something no prior Chief Justice had attempted. Accompanied by our very able Administrative Director of the Courts, Bill Vickrey, I completed those visits during my first year as Chief Justice.
What we learned - and what we were able to communicate in those visits with judges, court employees, lawyers, and community leaders - helped lead to the successful implementation of many of the changes that I already have described. The purpose of those changes was not to make things easier for judges and court staff - they were aimed at improving public access to and trust in our legal system.
I shall now highlight just a few initiatives that I hope will give you a sense of how broadly our courts have interpreted their mission to improve access and fairness in our justice system.
Courthouse family law facilitators now are at work in every county, helping people navigate their way through the crucial proceedings of family law - divorce, child custody and support, and domestic violence. Many local courts have developed self-help centers that focus on serving individuals who are not fluent in the English language. Some courts now offer regional services in rural areas, even providing vans that travel to remote parts of the county that otherwise are underserved.
At the urging of the Judicial Council and the State Bar, the Legislature began to provide a $10 million annual appropriation for an Equal Access Fund to aid unrepresented litigants in civil cases, through various legal aid services and organizations. This has enabled us to establish self-help centers at courthouses with the assistance of legal-services providers.
Community participation in court planning is now commonplace. Juvenile peer courts, community evenings where judges answer questions from members of the public, educational programs in local schools that teach our children about our judicial system and why it is important to them - all of these are part of the process of increasing community access and finding new tools for courts to better interact with their communities.
Collaborative justice courts, focusing on cases involving drug use, domestic violence, or mental health problems, have had remarkable success, as I know has been the case in many of your states. These courts work closely with prosecution and defense counsel, local probation departments, education providers, therapists, and various social services and other community agencies to create programs that are fashioned to affect the underlying problems that often are the cause of the criminal behavior that lands an individual before the court.
Court involvement does not end with adjudicating guilt or innocence and imposing sentence. Instead, it encompasses trying to change the underlying conduct and conditions that led to the offense. One court commissioner testified before our Judicial Council that the drug treatment courts in her county had reversed the statistic on success rates for defendants. Where previously 80% were projected to re-offend within two years after release from custody, after drug court 80% were still successfully free of drugs after 2 years. Such individuals are required to seek and maintain employment, and often the result is a reunited family. Lives truly have been turned around.
All this also makes economic sense when one considers the cost of keeping an individual in custody, the benefits to society from creating a productive and tax-paying citizen, and the financial as well as emotional cost of placing children in foster care when they have to be removed from their home because of their parent's substance abuse.
Our court system has significantly expanded its use of technology in the last few years. We have installed interactive self-help kiosks in many courthouses, equipping them with user-friendly forms. We are in the process of simplifying our court rules. Perhaps the most impressive technological achievement is our self-help website, which provides a broad array of services on-line. Its more than 900 pages of information already have been translated into Spanish, and large portions are being made available in other languages commonly spoken in California.
More than 3 million visitors use the site each month. It contains all 580 Judicial Council forms for use in court proceedings - forms that now can be completed on-line. It offers background information on the court system and on individual courts, as well as practical information on how to proceed - including directions to the local courthouse. The website offers links and directions to where one can obtain additional assistance - legal and otherwise, for example information pertaining to nearby domestic violence shelters - and has links to a host of other law-related web-sites. It already has won awards - but most importantly, it has demonstrated that on-line access to information about the courts is a remarkably useful resource for the public.
We have made jury service less burdensome and more inclusive of a broader spectrum of our population through the one-day-or-one trial mode of jury selection. Under this system, one's jury duty is satisfied by showing up at the jury assembly room for one day unless one is actually sent out to a courtroom where jury selection is underway. Having shown up for jury service myself in response to summonses I received the last few years - both under the old system and the new - I can assure you that we've made substantial progress in improving the system.
We have increased the compensation of jurors. Jurors in civil cases also are getting the benefit of our new plain-language jury instructions that are rendered by the trial judge to guide them in their deliberations, and we hope to have the set of instructions for criminal cases available next year.
California's court system has experienced enormous innovation during the past several years - but there is no guarantee that the road ahead will be easy, and we are far from meeting all the needs of the public we serve. Like many other states, California faces tremendous budget challenges - and our judicial system's ability to continue to innovate and work to respond to reasonable community needs is not assured.
California's judicial branch is fortunate to have been able to work closely with the other two branches of government. Each year, I have dozens of meetings with individual members of the Legislature and with the Governor and his administration, and also with other entities who are stakeholders in the justice system, emphasizing the need for adequate court funding and the essential role that the courts play in our democracy. The message I and others strive to convey to those who wield the purse-strings in Sacramento and Washington is that the courts are not a mere luxury, to be funded in times of prosperity, and neglected in bad times. Nor should the fortunes of courts be dependent upon the popularity of their latest rulings, interpretations, and applications of the law.
We seek to convey the message that the judicial system is not simply another bureaucratic agency - it is one of the three separate, independent, and co-equal branches of our government. It differs from its sister branches in the influences that must guide its functioning: we, of course, must be guided by the state and federal constitutions, statutes, and precedent that embody the rule of law in our nation and our individual states. Although courts are an integral part of our democracy, they are not and should not be considered simply another representative arm of government responsive to the newest polls and sensitive to the latest trends.
We are striving to make our court system ever more worthy of the designation "judicial branch." In California, our courts have taken on unprecedented responsibility for improving access, providing accurate fiscal information, and better communicating with lawyers, litigants, and the public. We have become active guardians of judicial independence and of the rule of law.
These days we sometimes hear the courts and the Bar criticized as impediments to the best interests of our nation or to the will of the people. I disagree. In my view, judges and lawyers must be - and to a great degree are - committed guardians of the rule of law and of the rights of all Americans. Every day in California, judges and lawyers can be found reaching out to all segments of the community, developing programs to assist self-represented and underserved litigants, contributing pro bono services, representing clients ethically and effectively, and impartially adjudicating civil disputes and criminal charges. I have no doubt that the same is true in your jurisdictions as well.
In my view, our legal and judicial system - and those who labor in its courthouses and law offices - deserve praise and gratitude from those who cherish our nation and the freedoms it extols. By working together to ensure independence, increase access, and provide the finest administration of justice possible, judges, court staffs, and attorneys contribute mightily to the strength and dignity of our nation and its principles.
In many respects these are challenging times for all of us, as private citizens, parents, members of the legal profession, and those privileged to serve on the bench. But these challenging times offer opportunities to better serve the public and strengthen our structure of government. We in California, like many of you, have been focusing on creative change and improvement. We look to you for ideas and innovation, and we look forward to working with you in the future to improve access to a fair and effective system of justice everywhere in our nation.
Thank you for inviting me to join you. I wish you an informative and enjoyable conference.