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Tuesday, July 16, 2024 | Back issues
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Old Mystery Pursues Court Leaders

SAN FRANCISCO (CN) - An old mystery that has pursued California's judicial leadership came up again at a statewide conference last weekend, when a Los Angeles judge was blocked in his pursuit of answers over a scheme to strip trial courts of the power to choose their leaders.

The controversy surrounds a provision inserted in a trailer bill, the catch-all legislation that accompanies a budget agreement, giving the central Judicial Council, and its administrative staff, the power to name local court leaders.

The gambit, which ultimately failed, would have taken that power away from trial judges who traditionally have voted to select their presiding judges, and it would have greatly increased the centralized control of the council and its bureaucracy.

But the identity of those who attempted the coup remains a mystery.

Los Angeles Judge Lance Ito has pursued the mystery, bringing it up at last year's California Judges Association conference in Long Beach and again last weekend at the group's conference in Monterey, trying to find out who was responsible.

"I submitted the questions in advance to the Chief and to one of the moderators, Judge Barbara Kronlund from San Joaquin," he said in an email.

"Kronlund told me the procedure was to submit the questions much, much more in advance. This question has been pending since the CJA conference in Long Beach. Which of course begs the question why the continued cover-up?"

In the face of at times withering criticism over the administrative handling of finances and policy, judges defending the administration have argued that California's judges should take common public positions, or "speak with one voice."

"The Chief has adopted, for better or worse, her predecessor's 'One Voice' mantra as we approach the fiscal abyss that has been looming for the past 4+ years," Ito said.

This year, he submitted a question for Chief Justice Tani Cantil-Sakauye's question- and-answer session with judges, asking once again who authorized the trailer bill language. His question was rejected before it could be asked.

While some judges say the matter has been put to rest, others continue to ask for an explanation on how a legislative proposal, largely seen as a back-door move by the Administrative Office of the Courts to shift power over court management to the central bureaucracy, came to be.

In a packed session at last year's conference in Long Beach, judges questioned panelist Douglas Miller, an appellate justice, about who had authorized the trailer bill language and who drafted it.

"Why was it drafted in the first place?" Judge Ito yelled out, followed by Judge Timothy Fall from Yolo County, who shouted, "Why don't you have the answer?"

Miller said he knew who was behind the draft, but could not give the name. He added that Supreme Court Justice Marvin Baxter, chair of the council's Policy Coordination and Liaison Committee, generally referred to as PCLC, had withdrawn the provision, saying he had been blindsided by it.

In a recent interview, Miller expressed his wish to have the mystery cleared up.

"I wish the leadership of the council and the AOC had just come out and admitted what happened," said Miller. "I don't think it would have continued for this time as a controversy."


What is known about the trailer bill language drafted during the Legislature's 2008-2009 session is that the California's Department of Finance asked the courts' administrative arm for help on a budget-related trailer bill.

The administrative staff ended up suggesting a revision to government code language that would have struck the words: "The trial courts shall establish the means of selecting presiding judges, assistant presiding judges, executive officers or court administrators, clerks of court, and jury commissioners."

And replaced it with: "The Judicial Council shall adopt rules, policies, or directives which shall provide, consistent with statute . . . (c) The means of selecting presiding judges, assistant presiding judges, executive officers or court administrators, clerks of court, and jury commissioners."

Many judges saw the draft as a treacherous attempt to wrench control over presiding judges and administrators from local courts, and their anger was heightened by what they consider a whitewash of the incident, when the court bureaucrats blamed the California Department of Finance, controlled by the governor, for the language in question.

The staff at the Department of Finance has rejected that charge.

"We did seek technical guidance from the AOC on the trailer bill," said HD Palmer with the department. "What we did not seek was any specific language to change the rules as far as trial courts being allowed to elect their own presiding judges and assistant presiding judges."

After coming up last year at the judges conference in Long Beach, the matter flared again in August.

Judge David Lampe of Kern County wrote to then-interim AOC director Jody Patel, asking whether administrative office lobbyist Donna Hershkowitz was involved in the revision, after an email surfaced showing that her staff had a hand in the matter.

Justice Harry Hull, a prominent member of the Judicial Council, sent a reply saying Hershkowitz had not acted inappropriately.

Ito described that reply as "non-responsive."

At a Judicial Council meeting late in August, Judge Steve White of Sacramento urged the Judicial Council to exercise more oversight over the administrative staff.

"While a member or members of the council may have been in the loop, the council itself was not," White said. "If the council did not authorize this duplicity, then it was perpetrated by one or more rogue employees at or near the top of the AOC."

Around the same time, Judge David Rosenberg, on the Judicial Council, sent Ito an email in August that attempted to reconstruct and explain the trailer bill incident, calling it "an exercise that went awry."

"It appears to me that something was initiated by the DOF, a staffer at the AOC (who I believe is Donna Hershkowitz) assigned it to another staffer who drafted some language," wrote Rosenberg. "It went up to Donna who sent it to the Executive Office, who approved it and sent it to DOF. Hence, folks at the AOC are clearly culpable, although they may very well have believed that either (1) this is language that DOF wanted in this exercise, and/or (2) this exercise wasn't going anywhere anyway."

Ito says that narrative does not explain the continuing cover-up of the affair.

"I have discussed this personally with Judge Rosenberg, and while I am willing to listen to his explanation of how the trailer bill came to be, it does not explain the false cover story nor the continuing cover up, including Hull's non-responsive letter," said Ito.

"If one agrees the AOC's attempt to wrest control of local court management away from the trial courts is an act of treachery, and the false cover story to be an act of deceit, then Hull's response that such conduct is not inappropriate for AOC staff pretty much speaks for itself and is a continuation of the cover up."

For Ito, the trailer bill controversy speaks to a larger issue of the judiciary's credibility with the Legislature, which he says has been undermined by the AOC's past actions, including its management of a $500 million IT system that was killed off this year.

"One of the problems is that we as a branch lack credibility with the legislature and the Governor when it comes to our ability to manage the public funds given us," Ito said, citing the project called the Court Case Management System. "Each time I mention the funding crisis to one of my local legislators I get the CCMS debacle in my face."

Ito said he also submitted a question about California Prison Receiver Clark Kelso, who is currently embroiled in a lawsuit accusing him of joining the AOC's payroll to get a pension from the California Public Employees Retirement System pension.

"Again, no answer," said Ito, who also remarked that Kelso's salary and benefits "could have been used to keep at least five courts like mine from closure."

Justice Miller sees the trailer bill as an issue that should have died three years ago when Justice Baxter quashed it, but remains controversial because the actors involved have not owned up to their roles in the draft.

"For me what's a saving grace is even if the AOC had been the driving force, it never would have gotten through PCLC. Justice Baxter was furious and it would have been immediately squashed," said Miller. "Again I wish someone would have just said here's what happened and here's the people who were involved and we'd be done with it."

Miller said the atmosphere of the Judicial Council has completely changed since Cantil-Sakauye took over leadership of the California Supreme Court in 2010, and similar language would never make it through the council today.

"To be quite honest, I don't understand how it has continued as a controversy because all of the Judicial Council leadership has changed, expect for Justice Baxter, we have all new leadership on internal committees, the AOC leadership has turned over and I can tell you with 100 percent certainty the new chief justice would not support it, and I don't know of a Judicial Council member that would have supported it," said Miller. "I would lobby against it strenuously. I was a presiding judge myself and I wouldn't want the Judicial Council or the chief justice dictating who the presiding judge is."

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