LOS ANGELES (CN) – The judges were called “clowns,” then they were called “stupid,” then the director was sullen and grim and called their proposals “insulting.” Thus begins the tale of determined Los Angeles trial judges in their campaign to gain entry to the quiet, art-filled hallways and well-appointed suites in San Francisco where California’s judicial upper crust holds court.
The report that chronicles that campaign reflects a build-up of frustration and anger during the 14-year tenure of the previous chief justice in California, Ron George, who made it his mission to centralize the state courts. Along the way, he created a bureaucracy that grew and grew, eventually squashing the council of judges that is supposed to oversee that bureaucracy and advise the chief justice.
With a meeting coming up Wednesday to decide where the axe will bite after the Legislature’s $350 million cut to California’s court budget, money matters are at the forefront of discussion in figuring out how the courts got into the fix they’re in, and where to go from here.
“The trial court budget group will be asking a lot of really hard questions about how much money there is in various funds,” said Los Angeles Presiding Judge Lee Edmon, who is part of the budget group.
“While we are interested in what information the staff brings to the meeting, we will be asking for a lot of additional information on how to proceed to solve these problems.”
Edmon said she had not been aware that the meeting is closed to the press. “It is important to be transparent,” she said, adding that the issues will come up before the Judicial Council in an open meeting.
The court’s administrators have said, for example, that they are willing to give up $10 million from funds for a controversial IT project, leaving unanswered the larger questions of what fund that money comes from and how much remains in that pot. The transfer of tens of millions of dollars between funds to support the deeply unpopular project has often seemed a kind of shell game leaving the total numbers to be guessed at.
“Oh,” said Edmon with emphasis in her tone and understatement in her words, “there is no doubt that will be one of the questions tomorrow. It will be the subject of some discussion.”
Earlier this year, Edmon appointed a group of leaders from the Los Angeles court to put together a report California’s chief justice intended to provide substance to the complaints that the court bureaucracy badly needed reform and provide examples as opposed to general grumbling.
In one section of the report that was obtained only recently, the Los Angeles judges point out that the budget working group is controlled by top bureaucrats instead of the elected judges who are constitutionally empowered to decide court policy.
“That working group reports to the administrative director, not to the Judicial Council,” said the L.A. report. “Insofar as that important working group has any input into council deliberations, representations are made by the AOC staff as to the views of the working group.”
Judge Carolyn Kuhl, who is the supervising judge for civil matters in Los Angeles, put together the report as head of a small committee made up of leaders in the Los Angeles court.
“It is true that one of the things we say is that the council should hear on budget matters from a budget working group that is operating with sufficient information to provide real input from the trial courts as opposed to simply giving approval to whatever recommendation the staff makes with information that supports only that conclusion,” said Kuhl in an interview.
“This should not be a group that reports to the AOC staff and then the AOC staff reports to the council,” she added. “This should be a group that reports directly to the council.”
The new chief justice, Tani Cantil-Sakauye, was appointed late last year by the outgoing governor, Arnold Schwarzenegger, and she has pledged a top to bottom review of the bureaucracy, called the Administrative Office of the Courts.
As part of that review, she sent a survey to the trial judges asking them in essence what was wrong with the way the California courts are run and how to fix it.
Based on answers coming back from Sacramento, Orange County and Los Angeles, she is getting an earful.
Bureaucrats v. Judges
Starting with a description of a string of insults and maneuvers to shut them up, the 17-page report from Los Angles is gathered from the stories and comments of the court’s judges. They lay out the tactics used by the civil service bureaucrats to influence and ultimately dominate the Judicial Council that has the constitutional job of deciding California court policy.
“One theme that emerges is the overwhelming sense that Administrative Office of the Courts staff, under prior leadership, has felt it could do whatever was required to reach a presupposed result, regardless of the means,” said the report.
In some ways, the document also serves as an au revoir note to the outgoing director of that administrative office, Bill Vickrey, who figures prominently in the anecdotes and who is supposed to exit in early September.
The report lays out the ways and means through which the bureaucrats led by Vickrey have carried out their campaign both from inside the council, keeping the judges in the dark as much as possible, and from the outside, working to undercut the power of presiding judges and increase the sway of civil servants.
The report also describes a fundamental combat between judges and bureaucrats over information and the ability to speak freely. The judges on the council cannot consult with each other and the information that reaches them is controlled through a bag of tricks, say the report’s authors, with AOC staff standing guard at all gateways of communication.
“Council members lack sufficient opportunity to talk directly with each other without being `overseen’ and managed by staff,” says the report. “Flow of information is carefully controlled.”
“Although Council members have suggested that a portion of each issues meeting be set aside for Council members to be able to address each other directly,” said the report, “the suggestion was rejected.”
Judges are not told the agenda for council meetings ahead of time, nor are they given the materials ahead of time. So they can’t prepare questions.
“Council meetings are short,” the report continues, “and are organized to rush though discussions. Materials concerning issues of greatest significance, particularly on financial matters, are provided only days or hours before the meeting, and sometimes only at the beginning of a Council meeting or during the meeting itself.”
Presentations at council meetings are usually scripted affairs, providing reasons only to follow the course of action suggested by the staff. Important issues get buried by reams of material on “topics of only symbolic importance.”
Such as awards.
In a casual setting, trial judges will occasionally regale listeners with tales of council meetings where George would give Vickrey an award and then Vickrey turns around and gives George an award. Council members get awards for attending and for leaving, even contractors get awards.
That tendency of the council towards irrelevance was on display two weeks ago when it met at the end of a week of heated budget negotiations between the Legislature and the governor, with administrators lobbying extensively before the Legislature. But, in the midst of that furious activity over a cut totaling $350 million, the budget was not on the agenda for discussion.
With regard to the green matter that serves as fuel for the machinery of California’s courts, The Los Angeles report says in diplomatic words that the money has been mismanaged by the bureaucrats and, lacking oversight, the bureaucracy has grown far outside its proper role.
“Proper stewardship of branch funds has been overlooked,” said the report.
“The council also has failed to oversee the AOC budget,” the report adds.
The council’s own rules say that the administrative director, i.e. Vickrey, is accountable to the council and the chief justice. And yet, “The performance of the administrative director never has been reviewed by the council.”
A past battle that has gained legendary status among the trial judges is discussed specifically in the survey results from Orange County and Los Angeles. It is used as an example suggesting that strict adherence to truth and fact have not been the hallmarks of the bureaucratic désmarches.
“The AOC drafted and ‘floated’ to the Legislature a proposal to remove the selection of presiding judges and trial court CEO’s [head clerks] from the control of local courts,” said the Los Angeles report. “When this legislative proposal came to light, AOC staff incorrectly contended the Department of Finance had made the proposal.”
One anecdote in the report suggests the extraordinary power the bureaucrats had amassed, matched only by the amount of nerve that came with it. The story is also the one time that the report shows the two most powerful figures in court administration, beneath the chief justice, in conflict.
The rules that govern how the system currently works were being put together by groups chaired by judges. “AOC staff proposed that staff, rather than the bench officer who chaired the committee, should make presentations to the council.”
That proposal which per force had to come from Vickrey, was abandoned only at the insistence of the chair of the executive and planning committee, which for years was Associate Justice Richard Huffman. The story meant that Vickrey had become so powerful that only Huffman could control him.
Those two men sat on either side of the old chief justice at council meetings, aptly symbolizing his twin pillars of support. In all other instances recited in the report, the two men worked as hand in glove.
Like the Orange County judges, the Los Angeles judges did not limit their scalding of the state of affairs in San Francisco to the bureaucrats. They gave nearly equal time to maneuvers by the council’s most powerful committee.
And like the survey answers from Orange County, the Los Angeles report describes a system where the committee on one side and the bureaucracy on the other held all the cards and played them against the trial judges stuck in the middle.
The executive and planning committee, or E&P as it is referred to, was run by Huffman, who has in the past been described as the principal defender, some use the word enforcer, for the former chief justice. His resignation from the committee was accepted by the new chief justice earlier this year.
The complaints about his committee revolve around the poles of money and power.
The report says the committee used a series of maneuvers, not unlike the tricks used by the bureaucrats, to hand control of enormous sums of taxpayer money over to the bureaucrats in a way that avoided oversight by judges on the council.
First, the E&P committee OK’d an allocation of money from two construction funds for “improvement” and “modernization” of the courts. “No report was made to the council prior to these allocations, which together could total as much as $190 million in a particular year.”
Critically, the funds were not allocated until the middle of the year, which meant that the funds almost certainly could not be spent before the end of the year. But — and this is the key — they rolled over for unsupervised spending by the administrators in the following year.
“Thus, the delegation of authority to E&P not only avoided public scrutiny by the council,” said one of the most damning sections of the L.A. report, “but also created a mechanism by which funds that were to serve the needs of the trial courts were placed within the control of the AOC.”
How those funds were spent has remained a mystery, as AOC spending is notoriously opaque. But the IT project sucks about $1 million a week in payments to a private contractor, according to a statement to the council by the former finance director earlier this year.
So it it is very likely that some substantial portion of that uncontrolled money went in the direction of the IT project which has received such a torrent of criticism that it is fair to describe it as reviled.
The IT Project
It is that campaign to control court data, much more than the court buildings, that has become the rock upon which the administrators’ boat seems to have crashed.
The ambitious IT system, touted by the former chief justice and called the Court Case Management System, has been rejected by a large majority of courts in California and its latest iteration, called V-4, has been quietly put on hold, and perhaps to eternal rest, in courts that have adopted earlier versions of the system.
Unlike Orange and San Diego counties, the Los Angeles judges have never embraced the new software which is rigid and labor-intensive, according to those who use it.
New rules put the IT system entirely under the control of the head clerk, and it is probably no coincidence that, according to verbal accounts by judges in Los Angeles, the central administrators have repeatedly suggested to new presiding judges in Los Angeles that the longtime head clerk of Los Angeles be replaced. Any replacement would be much more likely to kowtow to the administrative office in San Francisco.
The fact that Los Angeles has avoided entanglement with the IT project has meant that its critique lacks the cutting power that Orange County judges, who are very familiar with the software, have been able to apply.
Nevertheless the money spent on the big project could instead have been used for the money-starved trial court system of the nation’s biggest state. As a result, the project figures heavily in L.A.’s criticism of the way the court bureaucracy is run.
“At its December 14,2010 meeting, the Council received a report from AOC staff recommending the allocation of approximately $87 million from the Trial Court Trust Fund plus an additional $55 million from Special Funds for ‘statewide technology infrastructure’ projects.”
“A substantial portion of these funds were to be used for development of CCMS,” said the report.
In taking the money, the bureaucrats said there was no alternative. They marked “none” in that box. Given the depth of the controversy surrounding the program, the suggestion that there were no alternatives was in essence false.
“There certainly were alternatives and policy implications for the Council to consider,” said the L.A. judges. “Staff’s representation that there were `none’ was incorrect and a disservice to the Council.”
The veil of mystery that surrounds funding for the IT project continues in the current budget crisis. In light of Wednesday’s budget meeting, the administrators have promised to cut $10 million from the IT project’s budget, but they do not say where the money is coming from or how much is left.
In the governor’s original proposed budget for the current fiscal year, the one that started this month, the amount of $147 million is marked for “statewide administrative and technology infrastructure” in the courts, a title that sounds very much like the CCMS project. That amount compares to $96 million for the same budget item in last year’s budget, representing a 53% increase.
That continued spending on the IT project serves as Exhibit A for many of the sections of the report, from the bureaucrats’ willingness to circumvent the rules governing the council to the overstepping of authority by the E&P committee.
For example, a technical committee chaired by an appellate justice and a soon-to-be appellate justice, undertook an extensive study on how the IT program should be set up. “The committee then was informed by AOC staff that the contract for CCMS had been let”, the government term for signed or agreed to, “with no input from the committee.”
One of the many ironies contained in the stories is that now-Associate Justice Terence Bruiniers is co-chair of that committee, and he has manned the front lines of defense for the administrators and their failing project despite the fact that his work was apparently ignored as the bureaucrats swept around the judges.
A second example involves the stepping over of the council when it comes to working with the Legislature.
The second example involves the state auditor’s blistering critique of the IT system in February, which also holds a prominent position in Orange County’s history of the events that brought California’s judges into the treacherous financial and political straits they are currently navigating.
It was not the council, however, that reacted to the state auditor’s pasting.
“After the release of the CCMS audit, the council waited almost two months before meeting to discuss the findings,” said the Los Angeles report. “Prior to the council having had an opportunity to discuss the audit findings, AOC staff made numerous statements in reaction to the audit and testified before a legislative committee.”
Who Controls the Bureaucrats
The size of one very small section of the Los Angeles report — talking about control of the bureaucrats — belies its importance.
The section says nobody is holding them accountable, and that the system is set up so they answer only to themselves.
The council has allowed the administrative director to appoint directly or have a big say in deciding who serves on any committee that could look into administrative office affairs, said the report. “One example of this practice is the CCMS oversight committee.”
But the most important example is another committee with much broader authority. Last year, with controversy starting to swirl around the way the bureaucracy was spending public money, the old chief justice set up an “accountability and efficiency committee” to look over all questions of financial management.
But only the administrative director, Vickrey, was given authority to bring matters before the accountablity and efficiency committee. While individual council members and even members of the committee itself had no such authority.
As the Los Angeles report put it, “This Committee, charged with holding the AOC accountable, was staffed by the AOC.”
What the report does not mention is that Huffman, former head of the E&P committee, the dark knight, the bête noire of the reformers, has been been given a second life in the heart of power, appointed by the new chief justice to supervise — wait for it — the accountablity and efficiency committee.
Plotting a Solution
It comes as little surprise that the first recommendation from the Los Angeles judges is to replace the administrative director with an executive officer who is a California judge with a reputation for working well with others.
Next in line would be an operating officer who can handle money.
Council members should be demonstrated leaders of their peers, which would presumably very much include presiding judges who are elected by their peers. As opposed to “persons who have distinguished themselves only by having previously appointed to committees.”
The Los Angeles judges also recommend a small, independent staff that answers directly to the council and would serve as a check or counterweight to the immense bureaucracy of the administrative office.
The separate staff would be hired by the council — “a small staff of highly qualified persons, separate from the AOC staff, to advise the council on its policy functions and in its oversight of the AOC.”
Just as the former chief justice sought to undergird his campaign to consolidate central control of the courts with the writings of AOC resident scholars, who are on the public payroll, and other authorities, so the Los Angeles trial judges have quoted from a group of scholars and experts who say that centralization of rules and finances should be followed by a return to local control over many aspects of court operations.
A first attachment to the report lists a number of specific solutions that are best understood in light of the slights and manipulation of the past.
The council should allow any judge a chance to speak at council meetings — without being required to submit a script in advance. And their should be a rule to that effect. said one suggestion.
“The practice of routinely supplying Council members with crucial or potentially controversial written materials only at the last minute must end,” said another.
A number of limitations to the director’s power are also recommended.
“Neither the head of the AOC nor AOC staff should be permitted to appoint any judge or commissioner to any AOC or other committee,” says the first attachment.
“Further, the head of the AOC should not be permitted to appoint any local court staff to any AOC committee or other activity without first obtaining approval that person’s local presiding judge.”
Council meetings should be scheduled more often and their should be time for the council to talk things over “without AOC staff present,” said a third recommendation. “The Judicial Council should be required by rule to conduct annual, comprehensive, formal performance reviews of the head of the AOC.”
The authors of the Los Angeles report are judges Kuhl and Jacqueline Connor, former presiding judges Robert Dukes, Charles McCoy and Bill MacLaughlin, and judge and former president of the California Judges Association Michael Vicencia and judge and current member of the council Burt Pines.
“When Judge Edmon appointed the committee, one of the things she wanted us to do was to have specific examples for the chief who had been open enough to ask for input,” said Kuhl. “Rather than generalized grumbling, our task was to be sure we have facts to support the problems we identify.”
“Our second goal,” she said, “was to put that in context, to try and understand the reasons for criticism. We thought about the core principles that should be reflected in governing an institution of the judicial branch and we wanted to examine the extent to which the AOC or the Judicial Council was falling short in serving those principles.”
As for the account of past insults at the beginning of the report, other judges said the “clowns” statement was made by Huffman in reference to statements in the press and from Los Angeles judges opposing retroactive pay raises for the administrators while the courts were suffering from budget shortages. Those pay hikes are often referred to as “the midnight raises,” because they were approved in the waning terms of the former chief justice and former governor.
The grim and noncommunicative director, who labeled “insulting” the reform proposals from a group of judges, was Vickrey.
And the judges who made that reform proposal in 2008 and who were both dissed and dismissed by the director are Jamie Jacobs-May from Santa Clara, Carolyn Kuhl and Charles McCoy, both from Los Angeles, and Michael Welch from San Bernardino.
The second and final attachment to the Los Angeles report for the chief is an exact copy of the reform proposals that were presented to Vickrey in 2008, and the last words on the entire report, almost like an echo of the past, are the names of those four trial judges.