(CN) – Insulted, dismissed, discarded. California’s judges have had a strong reaction to changes to a beloved program that assigns retired judges to help shorthanded courts throughout the state.
“I have spoken to well over 25 assigned judges, all of whom have just a uniform feeling of being insulted, dismissed, discarded, and very upset, not only by what was done, but by the process,” says a retired judge from Northern California.
The changes have also thrown local courts into a state of panic as they scramble to figure out how they’re going to deal with sudden cuts to a vital program.
“We’re going into an unknown,” said Presiding Judge David Buckley of Los Angeles Superior Court. “We’re learning this process under the new rules as we go along.”
One thing Judge Buckley does know is that the program is critical to keeping courtrooms open.
For years, the temporary assigned judges program has filled the otherwise empty benches of California’s trial courts with substitute judges who step in to handle cases when a judge gets sick or takes a vacation. But a raft of cuts to the program initiated by Chief Justice Tani Cantil-Sakauye have left courts in danger of having to close courtrooms for lack of judges to fill them.
“It sounds to me like there was a leak in the roof and she blew up the entire house,” said a retired judge who asked not to be identified for fear of retaliation.
The cuts were put in place earlier this year after Cantil-Sakauye ordered a review of the program. But the Judicial Council, the state court rule-making agency in charge of administering the program, is still working out the kinks.
Los Angeles Superior Court, the largest court in the nation, used 4,630 service days from the program last year. On any given day within the Los Angeles Superior Court system, there may be one or several judges in each of its 38 courthouses who are out sick or on vacation, or attending to some administrative business on behalf of the judicial branch.
Buckley said he’s worried the court won’t have enough temporary judges to meet demand. “We are constantly trying to find judges available and willing to sit on assignment. It’s never been our problem that too many judges are asking to sit on assignment with us,” he said. “I was concerned we would not have enough available assigned judges to fill our need.”
He added: “We are constantly using assigned judges for various types of absences beyond our control. We always talk about Los Angeles being 30 percent of the statewide system, but we use about 15 percent of the total of the assigned judges used in the state. We are very dependent on the program.”
Under the new rules, courts will have to share a pool of 33,000 days per fiscal year where they can use an assigned judge. Half of those days are allocated to the courts based on half of their average usage of the program during the past three years.
For example, Tulare County Superior Court, which used 1,058 days’ worth of assigned judges last year according to a document prepared by the Judicial Council, will now receive a base allocation of 502 days.
Nearby Madera County, which used just 119 days last year, will get a base of 27 days. This includes the 20 days each court will receive automatically as a “floor” allocation.
The other half are reserved for emergencies, or when courts have gone over their cap and have a “demonstrable need” for a temporary assigned judge.
A memo from Robert Oyung, the council staff’s chief operating officer to the courts, explains that courts must request use of these days. “The requests will be approved by the chief justice depending upon the specific circumstances at the court and available resources to fulfill the request.”
For the roughly 375 retired judges who take part in the program, their service days have been capped at 1,320 days, or the equivalent of a six-year term of an elected judge. They are only allowed to work a maximum of 120 days in a fiscal year, and newly retired judges must wait 90 days before their first temporary assignment.
Several of the judges who spoke with Courthouse News said they fear being kicked out of the program if they speak up.
“Needless to say, there was an uproar,” said one judge who has been retired for over 10 years and sits on assignment in courts throughout Northern California.
She was referring to an email sent out on May 21 announcing the changes. The email was from Martin Hoshino, administrative director of the Judicial Council staff. But the program falls under the authority of Cantil-Sakauye, who makes the assignments.
The retired judge said she has long exceeded the 1,320-day limit the new rules impose, and she worried that at any point she will no longer be allowed to participate in the program, though she was recently approved for another year.
“I have excellent relationships with some of the county courts here who are trying everything they can to keep me working,” she said. “I truly enjoy working with these courts and I’d like to continue.”
Up until recently, any court in need of an assigned judge would have a clerk go through a list of retired judges it had used in the past – usually one who had been working with the court for a number of years, had a good relationship with the bench and the court staff, or had some expertise in a particular area of the law.
“Each county has a calendar clerk who is made aware of any needs and will call their familiar local judges. And then that clerk will call the Judicial Council and say is this OK,” said the retired judge. The council staff member would then give the approval.
Now, council staff must approve each request, adding an extra layer of bureaucracy to the process. The new rules also favor newly retired judges over ones who have served certain courts for years.
“Courts may continue to request retired judges who have already exceeded this limit, but doing so will require compelling reasons for why a particular judge is best suited to address the court’s needs: for example, a retired judge’s unique expertise in a given area of the law or an extended trial. Absent a compelling reason for requesting a particular judge, courts should generally expect assignment of another retired judge. Judges under the 120-day limit will be prioritized for assignment,” says the memo from Oyung.
Presiding Judge Gary Nadler, head of the council’s Trial Court Presiding Judges Advisory Committee, said the changes are unexpected, but necessary.
Nadler was appointed to his position by the chief justice who, as chair of the Judicial Council, appoints nearly all of its members. The chief justice also appoints nearly all the committee chairs and vice-chairs in the labyrinth of committees that feed proposals up to the council. Additionally, the chief justice decides on top positions such as director and chief operating officer in the administrative office that nominally serve the council.
“There’s a lot of uncertainty about the program. Most people don’t know what precipitated this oversight, this change,” said Nadler. “Every time anything is new it’s hard. Depending upon how it goes, are the courts going to be out of luck at the end of fiscal year because of the amount of assigned judges used by other courts? That’s always an issue.”
What has mystified many judges interviewed for this story is why.
“There was such mystery as to why this was suddenly thrown on us. If there had been any kind of consultation or discussion or transparency or explanation of what had caused this. Nothing. It was just announced by fiat and that was very, very disturbing,” said the Northern California judge.
The rationale offered by the Judicial Council is one of fiscal prudence.
“The chief justice shared that the core reason for implementing changes is that the state-funded program was heading for a deficit at a time when the AJP usage was not declining, despite a 40 percent drop in court filings,” says a letter from the California Judges Association President Judge Paul Bacigalupo to its members.
The annual budget for the Assigned Judges Program currently stands at $28 million, up slightly from last year’s budget of roughly $26 million. The program is not funded by money intended for trial court operations but is a separate line item in the governor’s overall budget.
Usage has also gone up slightly. According to a document requested by Courthouse News and prepared by the Judicial Council staff, assigned judges served a combined 33,619 days in the state’s 58 trial courts last fiscal year. In 2017-18, program usage went up to 35,669 days. That’s still down from when the program started in 2008, when it cost $31 million and courts used over 40,000 days.
Oyung, who was unavailable to be interviewed for this story, said through a spokesman that the changes have been driven by the threat of cost overruns due to overuse by the courts.
“You’re right in that in the past the program has stayed within budget,” the spokesman said in an email. “However, the trend of usage is such that the total requests for resources would eventually exceed our allocation – Rob [Oyung] says that perhaps that would occur in another two years. As a result, requests for the assigned judges program are being managed more closely – that’s why the changes are occurring.”
Judge Nadler expressed optimism about the changes.
“It’s important for us to pay attention to the program and use it the way it’s supposed to be used,” Nadler said. “I do believe that we have to be reasonable with respect to the money that is allocated. I really do think we can adapt to this. There was considerable concern when the limitations were first announced, but that being said, most courts I believe have made an effort to use the assigned judge program when it was appropriate to do so.”
But other judges aren’t buying the logic behind the proposed solution, which they say seems to reward courts that have used assigned judges the most. According to figures provided by the Judicial Council, those courts would be the largest counties in Southern California – San Bernardino, Orange, Los Angeles and Riverside, which used 13,537 out of a total 35,669 service days branch-wide last year or nearly 38 percent of total use of the program. San Francisco and Santa Clara used a combined 2,623 days last year.
“If the chief justice really wants to address any abuse, she would identify the abusers and tell them to start making arraignments for restitution. If she doesn’t, she’s giving those people a pass. She’s giving those judges and those courts a pass,” said one judge who was planning on retiring next year but has decided against it because of the changes.
Another judge, who also asked not to be identified, has been on the bench for 30 years, 10 of those with the assigned judges program. He has no intention of quitting, though the new limitations may force him to leave the bench for good.
“I like the work and I want to keep doing it. I really like the people I work with,” he said. “I got into juvenile law and I really enjoyed it. I feel like I can do some good.”
He said he worries courts he generally covers will be left in the lurch without a regular temporary judge to step in at the last minute.
“Given the amount of time I’ve changed my plans because I’ve gotten a call in the middle of the night because someone is ill – I don’t know how this new system is going to accommodate those,” he said. “If you find out a judge isn’t going to make his 8:30 calendar, how are you going to get a judge to cover it?”
With the limitations, the added bureaucratic procedures and preference for new judges over old ones in this new system, the retired judges – many of whom have decades of accumulated legal knowledge and judicial experience – say they feel expendable.
“It basically says the judges are not connected to their court where they were elected in the first place, that they are just pencil-pushers who can fit into a vacant slot,” said the retired Northern California judge.
For now, Oyung and his team are developing a strategy for courts to manage their service days and have promised to review the program again in January 2019.
“The chief justice has made it clear that she will work with each court that has needs so hopefully there will be no basis for those who profess doom and gloom,” Nadler said.
Judge Buckley said his court has tried to limit its use of the program, since they’re still not sure how exemptions to the limits will work.
“The direction has been quite clear that when the budgeted number of days are used up, if they are, that will be it,” he said. “Right now we need to reduce the number of days of assigned usage.”
Buckley said Los Angeles Superior may end up closing courtrooms if it can’t get enough assigned judges.
“The courtrooms with absent judges would have to be dark,” he said. “We’re going into an unknown experience. We just need to be much more conservative.”