Judicial Council to Lobby for 189 New Judges

(CN) - With California facing a shortage of judges, the Judicial Council wrestled at its October business meeting with how to most diplomatically present that information to the Legislature.

Judge Lorna Alksne of San Diego, who chairs the Workload Assessment Advisory Committee, presented a report on judicial need to the council Thursday, saying 31 of California's 58 trial courts need about 189 judges. The numbers are based on a three-year average of case filings from 2012 to 2015, Alksne said.

The Legislature requires the council to update the report, called the Judicial Needs Assessment, every two years. Since case filings are down statewide, the need for new judges has fallen from 270 since the last report in 2014.

Judges on the council took issue with the committee's methodology, which involved multiplying the three-year average of filings in each type of case by case-weight, or time a required to handle a case both on and off the bench. That number is then divided by the available minutes judges have in a year to hear their cases.

Judge Samuel Feng of San Francisco questioned how the committee arrived at the conclusion that it takes 177 minutes to handle a felony case.

"Every felony is different," he said. "The minutes are very misleading."

Alksne said the figures averaged from a small sampling of the courts, noting that the case-weights were last updated in 2010.

"We surveyed 20 different courts and we took random time and moment studies from different clerks and different processes in different parts of the court," she said. "We take those minutes, we figure out what the average is, how long it takes to process a felony. If you think about the majority of the felonies, a lot of them plead out. Some take a long time. You can figure out how many minutes it takes to process a felony in the state of California; it is right now 177 minutes."

But further complicating the figures, Feng said, are the differences between counties.

"Different counties have different cultures," he said. "In my county, you could have a 459-second and it could last you three weeks because of the nature of the culture of the attorney."

If that's the case, Judge Dean Stout of Inyo County said, then more courts should be participating in the workload studies.

"It's not going to be popular what I am saying here at all," Stout said. "I recall back in 2010, one of the criticisms of the numbers was that they really didn't have a representative number of courts participating in the study. At the time, some of the courts participating maybe did not fully understand the significance of what they were doing and didn't take it as seriously as they should have. Again, we are all overwhelmed doing our day jobs but still this is very, very important. I think getting everybody to participate is really helpful."

Alksne added to Stout's comment.

"There is some reticence for judges to take time, to mark time, and we need to get over that and just say we need to have this information so that we have information that we can give the Legislature that is accurate," she said. "Somehow, we need to get over that hurdle. We are not lawyers taking down minutes to show what we did or did not do. But we are trying to capture what our need is."

Judges also proposed adding a few paragraphs about how judges' workloads have been affected by AB 109 and Proposition 47, two initiatives that attempted to address California's overcrowded prisons by respectively transferring some nonviolent felons to from state prisons to county jails and converting some types of nonviolent drug and property offenses from felonies to misdemeanors.

The idea was raised by Judge David Buckley of Los Angeles and endorsed by Judge David Rubin of San Diego, who said a brief addendum could be helpful for new legislators who are unfamiliar with how the courts process cases or weren't around at the outset of criminal realignment.

"Is there a way to have a paragraph or two saying AB 109 was passed, it forced courts to do 'x,' that it was going to realign the justice system and reclassify these folks or whatever it was, so people who have not had any experience in the Legislature with AB 109 would know what it was? And then the practical impact on the courts meaning it required more hearings on this, this and this. Is there room for that or is that too advocacy?" Rubin asked.

Alksne was reluctant to adopt the suggestion, saying the results of criminal realignment actual or speculative cannot currently be supported by numbers. "I feel like we don't know what the effect of AB 109 is. The statistics might not bear out that we need more judges," she said.

Associate Justice Douglas Miller of the Fourth Appellate District agreed.

"I guess all of that is true but I am not sure that is what we have been asked by the Legislature to do, which was to give statistics based on a moment in time," he cautioned. "It seems likely that we would be creating a report that is undermining what we are asking [lawmakers] to do and consider when we advocate for more judgeships."

The council ultimately voted to submit the report to the Legislature in its original form.

After the vote, Alksne addressed Buckley, who had earlier jokingly asked her, "What was more difficult, preparing the report or reporting on the report?"

"Now I get to answer your question, Judge Buckley," Alksne said. "It was harder to report it."

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