Few of us have the time or the attention span to follow the machinations of the Judicial Council’s various advisory bodies. Judging by the press releases that clutter our email inboxes, many of these committees simply approve staff recommendations and pass out awards. But the latest developments at the Trial Court Budget Advisory Committee (TCBAC)—the Council’s largest, most representative, and most transparent advisory body—do deserve our serious attention, as they could have a profound effect on our local court budgets.
Last May, the Judicial Council tried to strip the TCBAC of its authority to allocate money to the trial courts from their main funding sources. The Council planned to transfer that authority to the insular and secretive Committee on Accountability and Efficiency (A&E). Our message to Justice Miller opposing the move is reprinted below.
The Alliance was not alone in speaking out against this attempt to demote the TCBAC. Among the most vocal opponents of the proposal were key members of the TCBAC itself, including its chairperson, Judge Laurie Earl of Sacramento. Judge Earl wrote to Justice Miller opposing the proposed change; we attach a copy of her message as a PDF file. Committee member Judge Dodie Harmon from San Luis Obispo also took a stand by moving that the committee formally oppose the Council's plan. In the face of this forceful opposition, AOC Director Martin Hoshino soon announced that the proposal had been scrapped.
But the story didn’t end there. Not long after Judge Earl sent her message to Justice Miller, she was removed from her position as TCBAC chair. Judge Harmon and Contra Costa County Superior Court CEO Stephen Nash—who, along with Judge Earl had also raised questions about the Council's IT budget after the demise of CCMS—were thanked and excused from the committee after just one year. Judge Harmon was replaced with longtime CCMS supporter, Judge James Herman, who has served on at least four other Judicial Council advisory committees over the last six years. Other committee members who did not speak out against the Council's TCBAC proposal or question the IT budget received extended terms, including one member who has already been on the committee for six years. So much for new faces and fresh perspectives.
With the purge of the TCBAC as a backdrop, we note that the Council was presented with a report at its meeting last Tuesday—Item N on its agenda—regarding recommendations from the TCBAC to shift various court expenses currently borne by the Trial Court Improvement and Modernization Fund (IMF) to the Judicial Council's general fund. Not one of these recommendations was adopted by the Council, even though the IMF is operating at a deficit and most likely can’t fund these ongoing expenses for much longer. The AOC contends that the trial courts can continue to bear these costs until the Council finishes its ongoing efforts at re-evaluating its operations, a process which will take another 18 months.
We wonder whether the Council intends to take seriously the recommendations of what was once its most representative committee. Trial court trust funds that have been drained by the Council's past mistakes continue to shrivel while the Council reviews its operations on its own timeline. We're not sure our courts can survive the wait.
Directors, Alliance of California Judges
Alliance of California Judges
May 18, 2015
Hon. Douglas P. Miller
Chair, Executive and Planning Committee
Re: Proposed amendments to Rules of Court, Rule 10.63 (SP15-03)
Dear Justice Miller:
We write to express our opposition to the proposal to give the Advisory Committee on Financial Accountability and Efficiency (the A&E Committee) the authority to determine the “appropriate uses” of expenditures to the trial courts from their main funding sources. In doing so, we add our voice to the voices of the many represented court employees who also oppose what can only be described as an unwarranted power grab. This new grant of power to the A&E Committee would come at the expense of the Trial Court Budget Advisory Committee (TCBAC), which currently performs that oversight function.
In opposing this proposed rule change, which was publicized only on the Executive and Planning Committee’s website and has been “fast-tracked,” we also join with the chair of the TCBAC, the Honorable Laurie Earl. We agree with Judge Earl that this proposed rule would strip authority from the committee that has gained expertise in budgetary matters and give it to a committee that lacks such expertise. We understand from multiple sources that this attempted power grab is being pushed by Chief of Staff Jody Patel and other members of the Judicial Council. The proposed rule change is a giant step backward in the Council's movement toward greater transparency and accountability.
We note at the outset that we take issue with the entire “judicial council model” of branch governance, under which the Chief Justice appoints most of the members of the various bodies that make vital decisions for the entire branch. Under the current system, the same small unrepresentative cohort is chosen time after time, term after term, to committee after committee. Dissenting voices are squelched; innovation is tamped down; “speaking with one voice” is the watchword. The result has been a lack of transparency; the takeover of key decision-making processes by the bureaucracy that was meant to serve the branch, not govern it; and catastrophically bad decision-making, of which the CCMS debacle is only the most conspicuous example.
Within the current flawed system, however, the Trial Court Budget Advisory Committee is the advisory body in the best position to speak for the trial courts. Its 34 members include a healthy mix of representatives from large and small counties. A&E, by contrast, has only 14 members. Its chair and vice-chair are appellate court justices, not trial court judges. The chair, Justice Huffman, is the ultimate Judicial Council insider, having served on the Council for 14 years. His is not the voice of reform. Nor would we expect that replacing him or other members of the committee through the usual appointment process would lead to a different result.
Moreover, the A&E Committee has failed to carry out its current charge, which does not bode well for its ability to handle any new responsibilities that the proposed rule change would confer upon it. As the State Auditor pointed out in her recent report:
“The Judicial Council did not ensure that the financial advisory committee fulfilled its intended purpose. . . . It is unclear how the financial advisory committee can ensure accountability of the AOC when it does not exist independently of the AOC, it does not review the AOC’s expenditures, and the AOC can override the financial advisory committee’s recommendations to the Judicial Council.” (California State Auditor Report 2014-107, p. 45.)
None of the proposed rule changes address any of these basic criticisms. Moreover, the A&E Committee is among the most secretive of the Judicial Council’s advisory bodies. According to its website, the committee met twice in 2014 and twice in 2015. Each of those meetings was conducted “by electronic means,” and a portion of each meeting was closed. By contrast, the TCBAC meets far more frequently and its meetings are open.
We also note one area in which the proposed rule change would actually strip authority away from the A&E Committee. The amendments to the rule would remove any A&E responsibility to review the AOC's compensation structure, ostensibly because “[t]he Judicial Council already is involved in review of Judicial Council staff compensation.” It appears that the AOC’s “classification and compensation study,” farmed out to a private vendor, is already behind schedule. The State Auditor’s report uncovered rampant bloat in AOC salaries. Somebody outside the inner circle really ought to have some say in how the AOC pays its staff.
When the State Auditor recommended changes to the Rules of Court that would bolster the advisory committee’s responsibilities and composition, she did not envision the removal of authority from an open, more responsive body to a reclusive and ineffective one. The proposal, if enacted, would serve as cover for the transfer of power to a less representative, less responsive body that conducts its business in secret and that can more easily be dominated by the AOC. Given the many failures of governance identified by the State Auditor and the Strategic Evaluation Committee, that is a terrible idea.
Directors, Alliance of California Judges