Plan to Reallocate Judgeships Moves Ahead

     (CN) – The Judicial Council’s committee on legislation voted Thursday to throw its support behind a controversial law that would allow the council to move five vacant judgeships from one county to another.
     The committee had delayed the vote for a week, reconvening with new language it hoped would assuage concerns from the state’s presiding judges who questioned encoding the council’s authority to reallocate judgeships, especially in such broad terms.
     “It’s safe to say that the presiding judges statewide are divided on this issue,” said Presiding Judge Brian McCabe of Merced County, who represents the state’s 58 presiding judges as chair of the council’s Trial Court Presiding Judges Advisory Committee. He told the legislation committee that he had polled the state’s presiding judges and received some “very vehement” opposition to the idea. “There are a number of competing interests and concerns,” he said. “The concern is this is a new arena we are stepping into, unprecedented, and it has people nervous.”
     The controversy stems from Gov. Jerry Brown’s plan in his 2016-17 budget package to move five vacant judicial positions. Brown said “this will shift judgeships where the workload is highest without needing to increase the overall number of judges.”
     Brown has been emphatic that these vacant judgeships need to be moved before he will agree to fund any new positions.
     The understanding is that this will involve taking two open positions from Alameda County and three from Santa Clara County, and giving two to Riverside County, two to San Bernardino County and one to Kern County. All three south-state counties are in serious need, though nearly all judges agree that with the state down by about 270 positions every court is in desperate need of more judges.
     The original language included the sentence “Vacant judgeships shall be allocated in accordance with methodology and criteria established by the Judicial Council.” That criteria, according to a report circulated by the council’s legislation committee, says the council will allocate the positions based on a court’s assessed need. A court assessed as “over-judged,” i.e. having too many open slots, would then be forced to give up any number of those vacancies to a court assessed as “under-judged.”
     In an interview Judge David Lampe of Kern County, a director of the judges group Alliance for California Judges, said the proposal is unconstitutional.
     “The Legislature can’t just delegate to the Judicial Council its constitutional responsibility anymore than they can say the Judicial Council can set the tax rates for the state of California,” he said, pointing to Article 6, Section 4 of the California Constitution, which says, “The Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court.”
     He said the Alliance would support the council making a recommendation to the Legislature on the issue, but that the council should not be shifting vacant judgeships around.
     “When you’re proposing to take judges from one court and reallocate them to another, there’s a host of issues with that, and the communities that are affected need the opportunity to be able to go to the Legislature on that,” Lampe said.
     The California Judges Association also issued a statement saying it was concerned about many aspects of the proposal, including that courts assessed as having too many open judgeships could lose funding.
     “CJA is concerned that the proposal, which is different than the governor’s initial proposal, does not limit the number of vacancies that could be reallocated. It also did not ensure that there would be adequate funding for the transferred positions and does not assure that the impacted courts have a say in any decision to remove a judicial seat from a community,” Presiding Judge Gary Paden of Tulare County and acting CJA president said.
     “Before we take a position on anything we want to know exactly what’s going to come down and at this point, there are too many uncertainties,” he said.
     The CJA’s two-page letter contains an additional worry over “the multiple unintended consequences that may be realized with the transfer of judicial positions” between counties.
     “For example, the loss of judicial positions may lead to more sitting judges being challenged by those that would have otherwise run for election for one of the eliminated vacant seats, further politicizing and destabilizing the judiciary.”
     At Thursday’s meeting the Judicial Council’s lobbying staff presented a new option: to give the council authority only to reallocate up to five vacancies, and to allow for public comment on the council’s methodology.
     The lobbyists said the council will continue discussions with the legislative and executive branches about the judicial branch’s need for additional judgeships, and offered tentative language about working “vigorously with the Legislature and Brown’s office to come up with a more permanent solution to the judge shortage.”

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