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Old Notion of Stripping Trial Court|Hiring Power Comes Back to Life

(CN) - Trial court judges are seething over what they describe as a "naked power grab" by the statewide bureaucracy of the California courts -- a proposal to strip trial courts of the authority to hire their employees.

"This comes under the heading of, 'Are you kidding me?' It's just inane," said Judge Steve White of Sacramento. "It is concerning that anybody would think this is a good idea."

Control over the day-to-day operation of the trial courts has been a bone of contention between trial judges and powerful bureaucrats in San Francisco for many years.

Officials in what was formerly called the Administrative Office of the Courts sought in 2011 to limit the ability of the trial judges to control technology in their own courts through a rule change, and two years earlier an administrative office lobbyist had made a stealthy effort to take away the power of the trial courts to hire their head clerk, as part of budget negotiations in the Legislature.

According to a group of trial judges, the defeated notion was brought back to life recently in a closed session of the executive committee of a subcommittee of the Futures Commission. The commission, chaired by California Supreme Court Justice Carol Corrigan, was set up last year by California Chief Justice Tani Cantil-Sakauye to find ways of saving money in the operation of California's courts.

Corrigan did not comment directly on the most recent controversy. But she said in an email that many ideas are being raised and discussed and there will be a number of public hearings where those ideas can be debated.

"Early in our work we solicited ideas from judges, lawyers and members of the public," the justice wrote. "Over the last several months the Commission has been discussing a number of ideas that might have merit."

How far the power-stripping idea traveled along the road from passing notion to solid proposal has itself become an issue of debate.

Appellate Justice James Humes is a member of the executive committee where the idea is said to have been proposed. He said it might be an idea, but all kinds of ideas are floating around the committee. And he called much of the reaction "inflammatory."

California Judges Association president Judge Eric Taylor wrote in an email, "I'd like to hear more about what is actually being discussed as opposed to rumors. And CJA will certainly inquire about this rumor."

"The balance between local court autonomy and centralized management is very delicate," he added. "As personnel issues around the state are very complicated and diverse, with obvious differences from region to region, a local perspective is critical."

Julie Conger, a retired judge who is an expert in judicial ethics, blasted the idea of taking away the trial court's power to hire and fire its own clerks. She called it "an unveiled attempt to further undermine judicial control of the courtroom."

"Personnel decisions not made locally will imperil cooperation and congeniality within the courtroom environment and will have a deleterious effect on workplace relationships," she said.

The alarm was first raised last week in a statement from the Alliance of California Judges.


"This is a very bad idea that needs to be scrapped before it gains any traction," said the Alliance. "The proposed change would leave trial judges-who face the voters every six years - on the hook for staffing decisions made by unelected bureaucrats in San Francisco."

The Alliance judges said the proposal directly contravenes Government Code § 77001, which gives local courts the authority to manage their own operations and personnel. The local authority was specifically enacted after courts relinquished their budget authority with the passage of the Lockyer-Isenberg Trial Court Funding Act in 1997, establishing statewide funding for trial courts.

Trial court judges are highly skeptical of the ability of the central administrators to handle major decisions involving the trial courts. The San Francisco-based court agency has been repeatedly blistered by the California Auditor over spending decisions that included wasting a half-billion dollars on a now defunct computer system called Court Case Management Software.

After the Trial Court Funding Act was passed nearly two decades ago, the central administrative staff based in San Francisco ballooned from less than 300 employees in 1992 to 1100 employees in 2011 with 200 job classifications, many of them at high levels of pay. The California State Auditor highlighted the spread of the central staff in her scathing report last year, and the agency's extensive use of contractors and temporary employees.

The current controversy over the trial court hiring has bitter precedents, in particular the 2009 effort to grab the authority of the local courts to choose their presiding judges and court clerks and transfer that authority to the statewide administrative body.

Despite the connection between that old gambit and the latest proposal, White said, "There's a fair distinction between this and that. What happened in 2009 was an utterly dishonest effort to upend the administration of the trial courts. This is something that is moving through the committee process."

"The thing that's so troublesome about this," he said, "is that there's anybody who still thinks six years later that this sort of shift of responsibility from the courts to the bureaucracy is desirable."

The Futures Commission appointed by the chief justice last year is a large group, with roughly 60 members. The idea that the statewide court agency should take over hiring and firing of trial court employees came up in the executive committee of a working group within the commission, said trial judges.

There are seven "executive members" of the commission's Fiscal/Court Administration Working Group, including two head clerks who were among the very small minority of local officials implementing the extremely expensive and now defunct CCMS software in their courts, clerks who have a history of participation in committees and projects organized by the statewide court agency.

Justice Humes is also an executive member of the working group, and he was critical of the alarm raised by the judges of the Alliance. "It is inflammatory, wrong, and meant to close down conversation when the point is to have open conversation," he said.

"There are no proposals yet," Humes added. "All kinds of ideas are being bandied about. I've not heard of any idea to shift all HR responsibilities to the state level. But it could be an idea."

"I think one of the issues that the Futures Commission needs to grapple with and have been talked about in a general sense is finding the balance between state and local control," Humes continued. "We all agree some things are done better at the local level and some things are done better at the state level. The idea is just to figure out how can we come up with a blueprint to improve the courts."

Judge White with the Alliance is confident that the idea will not gain traction, saying, "I think the courts would stop it."

Judge Taylor with the California Judges Association said he plans to address a Dec. 8 hearing on the various ideas coming out of the commission.

"We have to look ahead in order to plan for future challenges facing our courts, and CJA will request a seat during these discussions," he said. "For over a decade, our underfunded courts have operated as if we were a temporary field triage unit, deciding which surgery patients most deserve the limited anesthesia. It's painfully unfair to the people of this state and our basic tenets of justice to continue to operate in this fashion."

From her position as the head of the Futures Commission, Supreme Court Justice Corrigan said, "Some concepts have been fleshed out for further study and analysis, which we anticipate will occur over the next year," she said. "Many additional concepts are still being developed."

Corrigan pointed to the public comment hearing scheduled for Dec. 8, which will focus on a highly charged discussion over how statewide funding for the courts is distributed among California's 58 counties.

Corrigan noted that more sessions are planned for 2016. "This will not be the only opportunity for public comment."

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