However, a lengthy email exchange discussing the vote was widely circulated among the state's judges and forwarded by judges who are not on the presiding judges committee. The email exchange shows that Earl advocated vigorously to include the tally for question 3 where judges who showed their preference between the "all deliberate speed" and "in principle" options.
In that exchange, Rosenberg argued that question 3 was only meant to kick in if neither the full-speed or the go-slow option received a majority. "The third question would have only kicked in if BOTH Option 1 and Option 2 had received at least a majority vote," he wrote in the emails. "But that did not occur."
That method of tallying the vote would favor the "in principle" option rather than the "all deliberate speed" option.
Earl countered, "First, the crafting of the language of Questions 1 & 2 lend themselves to a particular result, in that almost everyone preferring Option #1 would also predictably vote for Option 2, (since Option 2 is almost subsumed within Option 1) while the converse would not be true: People preferring Option 2 would not normally also vote for Option 1."
"However the bigger problem lies in the way the data has been chosen to be interpreted and reported," Earl continued.
"40 PJs voted, 26 of them indicated a preference for Option 1 by either voting for that option alone, or by voting 'yes' on both questions, but indicating Option 1 as their preferred option," she wrote. "The remaining 14 judges indicated a preference for Option 2 either by voting that option alone, or by voting 'yes' on both questions, but indicating Option 2 as their preferred option.
"The way you are choosing to report the data, as indicated below, makes it appear that a majority of respondents preferred Option 2, which is incorrect," Earl wrote. "Without a doubt, of 40 PJs voting, a majority clearly indicated a preference for Option 1. For those of us who voted for both, but expressed a preference for Option 1, our 'yes' vote on Option 2 essentially erased our vote for Option 1."
She concluded, "As a result, I believe it is more accurate to report to the council, that the TCPJAC recommends to the Judicial Council that the Judicial Council endorse and adopt the SEC Report in its entirety and make every effort to implement all of the recommendations with all deliberate speed, as reflected by the majority vote."
Judge Daniel Goldstein of San Diego commented with some disbelief on the judges who voted for supporting reform "in principle" but voted against reform at "all deliberate speed."
"Who voted against implementing remedies against waste, mismanagement and abuse of taxpayer dollars? That is what's striking," he said. "That a presiding judge would vote against saving their budget and stopping waste, mismanagement and abuse of taxpayer dollars, that's amazing."
He also took issue with the way the "in principle" question was phrased and the way the vote was tallied.
"It's really an ambiguous question," he said. "You can't look at two without looking at one. Question one is an objectively verifiable question. It has an answer -- either you're for implementation or against implementation. It is clear. Question two is amorphous. It doesn't require action."
"Further complicating the matter is a erroneous computation of the vote," he added. "I would assume the presiding judges who voted yes on question one are going to take issue with this."
The disagreement has led some presiding judges to ask for another vote.
Presiding Judge Beth Freeman in San Mateo County wrote in the email exchange, "I think our voting procedure has caused an anomalous result. I would request a re-vote on question 1 -- to urge the Judicial Council to adopt the SEC Report and Recommendations."
Rosenberg answered, "I do not intend to have a revote. I do intend to present the voting results of BOTH option 1 and 2 to the JC so that all votes yea and nay can be presented."
However, in an interview on Tuesday, Rosenberg said he will present the numbers on all three survey questions to the Judicial Council on Thursday, adding "It would have been a lot less complicated if we only put one issue out there."
"It's my intention simply to present everything, the raw vote on all three issues that were put before the presiding judges," Rosenberg added.
"I've also urged all presiding judges to write their letters to the Judicial Council if they support the report, if they oppose certain portions, whatever their position is," he said. "That's what the members of the SEC requested. These simple yea or nay votes don't mean that much -- it's more significant if people address the substantive issues."
Presiding Judge Sherrill Ellsworth from Riverside is one of the authors of the SEC report that recommended sweeping reforms to the Administrative Office of the Courts.
In the email exchange over the vote, she says, "I agree with Earl's comments and appreciate them. In many respects a report such as this is a pretty thankless labor. It is far too easy to Monday Morning Quarterback."
"I can tell you no one on our committee had an axe to grind. I can also report that our chair Judge Charlie Wachob and our vice chair Judge Brian McCabe were consummate professionals capturing the information we were given and translating it into the report I hope you have all read. This report was labor intensive, thorough and the result of hours and hours of work."
"To me it is simple, we were given a task by our Chief and we fulfilled that task," she said. "Some may not like the findings or the tone but, the report is neither diluted nor inflated. It is a tool for change, self-examination and restructuring the future of the branch."
Ellsworth also declined to be interviewed on the controversy.
Presiding Judge Richard Scheuler of Tehama County voted "no" on question one, but "yes" to the second question, supporting the committee's report only in principle.
"I have great confidence in the chief justice and great confidence in the Judicial Council and the vote gave them the discretion to do what they do best, which is governance," said Scheuler in an interview Monday. "I appreciate the hard work that went into that report. I appreciate that the chief justice asked for it. They're in the best position to implement the recommendations."
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