In a bizarre move, Chief Justice Tani Cantil-Sakauye opened Friday’s meeting of the Judicial Council by announcing her intention to “retire, remove, take away, eliminate the name ‘Administrative Office of the Courts.’” Friday’s published meeting agenda contained no reference whatsoever to the planned action. The Chief Justice directed the chair of the Council’s Rules and Projects Committee to propose an amendment to the Rules of Court that makes the change official. The Chief also issued a written statement regarding the name change to all AOC personnel, whom she addressed for the first time as “Judicial Council Staff.”
In an obviously choreographed maneuver, the Agency Formerly Known as the AOC immediately released a statement that quotes Administrative Director of the Courts Steven Jahr:
“This retirement at once changes everything, and changes nothing. There’s only one entity, and that’s the Judicial Council of California. Neither in the Constitution, in statute, in rules, or in other formal methods, was a separate entity ever created. (Emphasis ours.) The change is more than superficial. It changes nothing in our organizational structure, but it does emphasize that the Judicial Council is the governing body with a staff that supports it, and it reflects a culture change that is already under way.”
We heartily agree with two parts of Judge Jahr’s statement. First, by itself, the new name changes nothing. Second, the AOC mushroomed from an 18-member support team in 1961 into a hulking bureaucracy of over 1100 employees in 2012 without constitutional, statutory, or regulatory authorization.
As the Alliance of California Judges has argued since our inception, the Judicial Council is a constitutionally created body with very limited powers, which consist of surveying judicial business, making recommendations to the trial courts, and enacting Rules of Court dealing with practices, procedures, and administration. This constitutional grant of authority has not been changed since the creation of the Council in 1926. In addition to these powers, the Constitution gives the Council the power to designate an “Administrative Director of the Courts.” That’s it. The Constitution—then and now—never mentions an Administrative Office of the Courts.
In 1961, the Council enacted a “resolution” creating the AOC. The entire resolution reads:
Be It Resolved that, pursuant to the authority vested in it by the Constitution of the State of California, the Judicial Council does hereby delegate authority to the Administrative Director of the California Courts, under the supervision of the chairman, to employ, organize, and direct a staff which shall be known as the Administrative Office of the California Courts and which shall be operated as the staff agency to assist the Council and its chairman in carrying out their duties under the Constitution and laws of the State.
Under its modest grant of constitutional power, the Council had absolutely no authority to create a state agency, let alone a large one. We are very pleased that the administrative director of that agency and the Chief Justice have now apparently come to the same conclusion we have: that there is not, and never was, a legally created agency called the Administrative Office of the Courts. There is only a Judicial Council, defined by the Constitution, and its subordinate staff, which serves at will and which has no powers, constitutional, statutory, or otherwise. The shame is that for many years those who have questioned the authority, let alone the legitimacy, of the “Administrative Office of the Courts” have been decried as rebels and troublemakers.
As to how the Council should proceed from here, given this belated recognition by the Council and the head of the former AOC, we say: Slow down, and follow the rules.
The Rules of Court require that before any amendment to the rules is voted upon by the Judicial Council, it must first be published and circulated for public comment. The only exceptions occur (1) when a rule change is non-substantive and non-controversial; or (2) when “compelling circumstances” have been shown to exist. (See California Rule of Court 10.22(d) and (g).
In reality, this new name-change rule will be drafted by the AOC, not by the Council or its internal committees. And if the procedure suggested by the Chief Justice is followed, it will immediately be laid before the Council in July for a unanimous “Yes” vote—you can bet the farm on that. We think it appropriate for the Council and the public to have a chance to study and comment on the proposed makeover, because it may lead to a lot of complications.
For example, dozens of statutes and Rules of Court which refer to the AOC, not the Council, will have to be rewritten, along with hundreds of contracts and other business agreements. For years we have been told that the AOC has taken ownership of our courthouses. Will the Council now take ownership? And, of course, there are costs to be considered—reams of forms and other documents bearing the constant reminder, “The AOC—Serving the Courts for the Benefit of All Californians” will have to be discarded or redacted, at some expense.
We urge a calm, deliberate approach which taps into the collective wisdom of this state’s judges and considers their comments, so that this “retirement” will not have to be one done again and again. Ignoring the rules is what first caused the “agency” to be created, and the rules should not once again be ignored in trying to rectify that most costly and embarrassing error.
We hope that this “retirement” of the AOC “brand” is not simply a clumsy attempt to deflect criticism, something akin to Philip Morris becoming “Altria.” The Council has never been held to account for the bureaucracy’s blunders precisely because there is an AOC to point to, and an AOC to defer to, and an AOC to lead the Council into orchestrated votes. We all remember the CCMS fiasco, in which the AOC was allowed to run a failed program while the Council—which remains unaccountable to this day—signed the checks which helped bankrupt the judiciary. If this attitude persists, it won’t be rearranging deck chairs this time; it will be renaming the Titanic itself. This 53-year charade has gone on long enough.
If the Council is to truly accept that it, and not its staff, is the repository of power, it must also be prepared to deal with the personal consequences of that reality. We agree with the Chief Justice that responsibility for the oversight and budget problems that the branch has experienced rests with the Judicial Council itself. That is why the Alliance of California judges sponsored and obtained unanimous approval of the Joint Legislative Audit Committee for an audit of the Judicial Council's operating budget (Program 250.30). We are pleased that the Judicial Council members are stepping up in advance to acknowledge that they have personal responsibility for any failings that the audit might reveal which occurred during their tenure. Although the Judicial Council is not a governing body, it is vested with many statutory responsibilities in overseeing the Judiciary's budget. We trust that if the audit reveals problems, any Judicial Council members who presided over any failings will accept responsibility.
The Chief Justice should immediately support not just a name change, but a real change—transforming the Judicial Council itself into an elected group of judges in place of the unaccountable, handpicked group that has demonstrated its inadequacy.
Very Truly Yours,
Directors, Alliance of California Judges