California's Chief Justice Had a Lot to Say in State of the Judiciary Speech--Urgent Action Needed to Save Our Courts

The Need for Additional Judges

Since the late 1980’s, the number of new judgeships created in California has lagged far behind the growth in population across our state — especially in the fast growing Central Valley and Inland Empire areas. Changes in the structure of the judicial branch, including our unification of 220 trial courts into one level — 58 superior courts, one in each county — have allowed our system to better utilize the positions we have. But the gap between expanding caseloads and the number of judges available to handle them has continued to grow, adversely affecting the administration of justice.

Courts have been forced to shut down civil courtrooms — in some cases countywide — because criminal cases facing dismissal have priority under the law and there was an insufficient number of judges to handle all the cases. In Riverside, one of the most affected counties because of an enormous growth in population, for two years in a row all civil courtrooms were closed for several weeks. Civil litigants saw the resolution of their family law matters, contract disputes, housing, probate, and personal injury claims deferred and delayed. One older gentleman wrote to tell us that for two years in a row, the Riverside court had had to take his civil case off calendar, and that he worried he would not live long enough to see his dispute resolved.

Last session, we proposed to you and the Governor a plan to create 150 new judgeships to alleviate the most acute needs in the state. The plan was based on a systematic and thorough evaluation of caseload and population growth, and a study by the National Center for State Courts that confirmed that at least 350 new judicial positions were justified. To meet the greatest needs, we asked you to create the 150 most needed new judgeships — 50 in each of three successive years. Thank you for making the first 50 positions a reality.

Each of the 50 judicial positions we are requesting this year is essential if the courts in the affected parts of the state are to meet the fundamental needs of the public.

The reason is basic. Our shared focus on providing meaningful access to justice — and on employing various means to enable the court system to better meet the needs of our diverse population — all are aimed at the same goal: ensuring that individual litigants can have their matters fairly adjudicated. We can devise all sorts of innovative procedures to improve the way courts handle the disputes that litigants bring to the courts, but these measures will be meaningless if there is no judge to decide the cases.

We also are seeking legislation to convert some existing subordinate judicial officer positions into regular judicial positions. Many of these court commissioner positions were created locally to help take up the slack when no new judgeships were being created. Many of those who serve perform excellent work. But the process for selecting them does not include any vetting by the Governor or the State Bar’s Judicial Nominees Evaluation Commission, and unlike judges they are not subject to a vote by the people. Because of the insufficient number of judges, many of these subordinate judicial officers are presiding over major cases — even death penalty trials and multi-million dollar litigation. At a relatively small cost, we can convert some of these positions into regular judicial positions when they become vacant and where they are needed, and appoint judges in the regular manner to fill them.

We, along with you and the Governor, are committed to ensuring the diversity of our bench to better reflect the rich diversity of the people of our state. As required in the legislation creating the first 50 new judicial positions, we have gathered data about the gender, racial, and ethnic background of all sitting judges, and will shortly release our report. The Governor is gathering similar data relating to persons applying for appointment to the bench and those referred to the State Bar by him for evaluation. We must make sure that individuals with every kind of background and experience can seek a judicial position without sacrificing his or her financial security.

Judicial Compensation and Retention

Recently, the Chief Justice of the United States, John Roberts, made headlines when, in his annual report on the state of the federal judiciary, he stressed the corrosive impact of stagnant judicial salaries on the ability of the federal courts to attract and retain the most qualified judges from a broad range of law practices and backgrounds.

In California, however, thanks to you, we have seen definite progress in this area. Last year you provided an 8.5% increase in judicial salaries. But the other side of the coin of judicial compensation is the judicial retirement system.

One of the major problems affecting the ability to attract the most qualified and diverse pool of applicants for appointment to the bench is the retirement program (JRS II) available to judges appointed after 1994. This is one of the most restrictive programs in the public sector. It generally requires judges to serve for 20 years and reach age 65 in order to receive a defined benefit. With less service than that, the individual essentially receives back only his or her contributions, and part of the state’s contribution, in a lump sum. Our modest proposal still would require 10 years of service and reaching the age of 63 to be eligible for a defined benefit.

We want to attract and retain individuals from the public and private sectors at the height of their legal careers and take advantage of their skills for a sustained period. None of us expect to become wealthy entering public service, but we are losing too many excellent judicial candidates. And we also are seeing many judges leave the bench early to provide for their families. It does not make sense for the state to pay retirement benefits to a judge and concurrently have to pay the salary of a replacement judge. The state may end up paying more for less experience. This is an urgent matter affecting the public interest.

Legislators have told me that many qualified individuals in their districts — lawyers practicing in the private sector as well as those employed in government law offices — have cited the inadequacies of the retirement system as a reason for not seeking appointment to a judicial position. At a recent liaison meeting I held with the California District Attorneys Association, several DA’s stated that highly qualified prosecutors and defense attorneys in their counties were interested in judicial positions but had told them they could not afford to apply because of the adverse effect on their public retirement benefits.

Additionally, both salary and retirement systems have a clear impact on our ability to attract a racially and ethnically diverse group of candidates. There are too many other more lucrative options in the private and even in the public sector awaiting the best candidates — options many feel compelled to take because of their other obligations.

California's Court Facilities

With funding of the court system now a state responsibility, and the many competing demands upon county government, the lack of local interest and ability to allocate scarce resources to courthouses is understandable. But decades of neglect have left the infrastructure of the court system in a very precarious condition.

In courthouse after courthouse, security is inadequate. Pursuant to your mandate, we have adopted minimum security standards. We are working closely and cooperatively with the sheriffs to create a proposal to bring each court up to those standards.

Many of California’s courts occupy buildings that are seismically vulnerable or are plagued with dangerous fire conditions or mold problems. Many facilities are incapable of meeting the requirements of the Americans with Disabilities Act. In 40% of these structures, shackled prisoners are brought to criminal courtrooms through crowded public hallways.

The deficiencies in our court facilities threaten the thousands of Californians who each day enter our courthouses to pay a traffic ticket, to obtain an official document, to seek dissolution of a marriage, to determine child custody, to adjudicate other legal claims, to testify as a witness, or to serve as a juror. They also threaten the persons who work in the courts — judges, staff, and lawyers.

The facilities legislation you adopted last year already has produced significant advances in court transfers to the state. We are actively negotiating with all 58 counties, and hope to complete the transfer to the state of up to 100 of California’s 451 courthouse facilities by this summer with the goal of transferring an additional 200 by July 2008. We also have begun to explore with your leadership a variety of approaches, such as lease-backs and multiple-use facilities, involving the participation of the private sector. We request your continued assistance in making progress toward our goal of providing safe and secure court facilities for all Californians.

Governor Schwarzenegger has proposed a $2 billion bond issue for the construction and renovation of courthouses as part of this year’s Strategic Growth Plan. Last year, courthouses were not included in the bond proposal that went to the voters. We hope this year will be different. We continue to push for this investment in justice because the alternative of life-endangering court facilities is unacceptable.

Assistance to Self Represented Individuals--Those Without Attorneys

You and the Governor have provided additional funding to improve equal access. I thank you — those funds already are at work, offering assistance to litigants unable to afford counsel on their own. The Judicial Council has shown its commitment by allocating an additional $3.7 million to support self-help services. These programs are expanding, and our goal is to install them in every court.

The number of self-represented litigants continues to increase, and their needs will, in my opinion, pose the single most challenging issue for the courts in the coming decade. In some counties litigants appear without an attorney in 85 to 90% of family law and landlord/tenant matters. The costs to the judicial system and to the public are high — impairing the ability of self-represented litigants to effectively vindicate their rights, undermining the ability of courts to efficiently process heavy caseloads, and eroding the public’s confidence in our judicial system.

Self-help services provided at courthouses and other locations and on the judicial branch’s website, augmented by legal aid and pro bono contributions by lawyers, are making a difference. But these activities are far from sufficient to meet the urgent needs of unrepresented litigants.

According to an article that appeared last month in the Los Angeles Times, thousands of self-represented Californians are awaiting a “nasty surprise” — “Many of them are not quite as divorced as they think they are” and some “are even accidental bigamists.”

Moreover, some cases simply are too complex for self-representation, or for particular litigants who are unable to navigate the legal process because of language or educational difficulties.

At our request, the Governor has proposed $5 million in this year’s budget for a pilot program to make legal representation available in a limited number of civil cases when the judge determines critical rights and issues are at stake. These include child custody matters, domestic violence, probate, housing and other matters with outcomes that affect basic rights. Three counties, one large, one medium, and one small, will be selected for the initial study. I can tell you that counties from every part of the state are vying to take part in this program. I strongly urge you to take the first steps to answer these pressing needs.

Interpreter Services

Last year, because of funding concerns, resources were withheld from a bill to provide interpreter services in critical civil proceedings. There can be no access to justice for one who cannot understand the proceedings. Information and forms increasingly are available in Spanish and other languages in courthouses and on the Judicial Council’s award-winning self-help website, but the need for interpreter services in the courtroom remains acute.

Meeting these needs will not be easy. There are numerous challenges, including the inadequate supply of qualified and certified court interpreters that we are working to supplement. But we must cope with the reality that every year more than 100 languages are spoken in California’s courts, sometimes interpreted by the young children of non-English-speaking parties. We are developing methods that will allow us to make incremental progress in answering this urgent need. We look forward to working with you to start implementing programs that will make a difference for so many persons in understanding and being understood when they come to court.

Good News: JusticeCorps

No one approach to ensuring justice for all will answer every need. We also are expanding the JusticeCorps. This program trains college students to work as assistants in court-based self-help legal access centers.

These students provide a unique source of assistance. Last year, the second class of JusticeCorps members in Los Angeles spoke 24 different languages and helped make it possible for self-help centers there to serve more than 122,000 persons. The response from those they help and from the courts in which they are providing assistance has been uniformly enthusiastic.

The Importance of an Independent and Impartial Judiciary and Threats to It

In this context, I want to stress the function served by an independent and impartial judiciary. That phrase does not describe judges who are unaccountable or free to decide cases based upon their personal preferences or political or social philosophy. To the contrary, it signifies judges who are bound to render decisions founded upon the law and the facts before them, independent of improper pressures and influences — judges whose allegiance is to the law, and not to partisan or special interests. We should expect nothing less of those on the bench.

In South Dakota last fall, an initiative measure placed on the ballot would have abolished immunity of judges from lawsuits, making them personally subject to monetary damages and even criminally liable based upon their judicial decisions — even those upheld in the appeals process. It failed overwhelmingly, but only after every legislator and other elected official and every major newspaper urged a “no” vote and explained the consequences of a subservient bench. Unfortunately, the proponents of this measure are Californians who want to try it out in a few small states before bringing it to their home state.

Courts and judges are not and should not be immune from criticism. But the role they play is very different from the one with which you as legislators are entrusted. You are elected in large part based upon the positions you hold on particular issues. Judges should be selected based upon their ability to set aside their personal beliefs and upon their commitment to the rule of law. We do not expect them to read the latest opinion polls before making their decisions. They are expected to consult only the constitution, the law, and precedent.

Recent studies of the public’s view of California’s courts have been very positive. A survey of public trust and confidence in our judicial system conducted in 2005 revealed that 67% of the California public has an overall favorable opinion of the courts, compared to less than 50% in 1992. The reforms and improvements that we have been undertaking, many with your express support, are making a difference.