Earlier this week, the Futures Commission held its first public comment sessions on fifteen “concepts” proposed by its subgroups. We attach two articles by Maria Dinzeo of Courthouse News regarding the meetings. We make three quick observations:
First, we note that the Commission doesn’t really provide a forum for trial court input into the decision-making process so much as it illustrates how closed that process has become. The Chief Justice appointed the Commission’s members. The Chief Justice—and only the Chief Justice—will decide what to make of its work. According to the Commission’s Chair, the Commission “will do nothing more than give a report to the [C]hief [J]ustice and it's up to her to decide what, if any, ideas have merit and what will she carry forward."
Wouldn’t it be better if we, the judges, could decide which ideas have merit and which to carry forward? Rather than rely on a commission that holds hearing after hearing and canvasses opinions over a two-year period, wouldn’t it be better if we could elect our own representatives to the Judicial Council to give voice to our concerns continuously? Wouldn’t it be better if we, through our elected representatives, could set our branch’s agenda?
Second, we wonder where some of the ideas percolating beneath these “concepts” are really coming from. The Commission’s Chair, for whom we have great respect, assures us that these “concepts” are not the work of “hidden bureaucrats.” We can’t speak for the executive officers who were polled by the Commission. But we doubt that there was a groundswell of support among trial court judges for uniform statewide labor contracts, more electronic recording machines in place of human certified court reporters, or a greater role for the AOC in local trial court management.
We can think of one idea that somehow didn’t make the cut: a fee-for-service model for the AOC. Local courts pay only for the services they use. That idea comes straight from the State Auditor in her 2015 report. It deserves serious consideration.
Finally, we note that former AOC Chief Operating Officer Curt Child addressed the Commission twice on behalf of his new employer, CourtCall. You may remember Mr. Child. Last July, he somehow got access to all our work email addresses and sent us a pitch.
Very Truly Yours,
Directors, Alliance of California Judges
Courthouse News Service
Hot-Button Ideas Set for Monday Meeting on Future of CA Courts
By MARIA DINZEO
(CN) - A fundamental philosophical difference over how California's courts should operate in the future is expected to come to a head in San Francisco on Monday. The line of contention runs between those who would seek to centralize parts of the vast court system and those who defend the independence of California's local trial courts.
The Commission on the Future of the California Court System was set up last year by Chief Justice Tani Cantil-Sakauye. She appointed roughly 50 voting members made up of judges, clerks and lawyers, and named Supreme Court Justice Carol Corrigan as the chair.
Early proposals coming out the commission have raised strong opposition from judges and labor unions over what they see as the outline of another incursion into local court operations by a centralized bureaucracy, a notion rejected by Corrigan.
"If you looked at a movie about a courtroom in the old west or in 'To Kill a Mockingbird,' you would recognize that courtroom as pretty similar to what we do most days in California," she said. "We're now in the 21st century. It's legitimate to ask, 'What can we do better?' Then we will do nothing more than give a report to the chief justice and it's up to her to decide what, if any, ideas have merit and what will she carry forward."
Those decisions are put in place by a variety of committees appointed by the chief justice and a large administrative staff, in the past called the Administrative Office of the Courts and now rebranded as the "staff" of the Judicial Council, a rule-making body where most members are appointed by the chief justice.
The staff is the San Francisco-based central bureaucracy of the courts, with roughly 800 employees, that has been the frequent target of searing criticism from the state Legislature and from trial court judges, particularly those in the Alliance of California Judges. The group was founded in 2009 and now counts a membership of roughly 500 judges.
"The more you remove judges from administering their courts, it potentially hurts our independence and hurts the legitimacy of what we do," said Judge David Lampe who sits in Bakersfield and is a founding director of the Alliance. "The more that can be kept local, the better."
Lampe said the Alliance's concern is with preserving the independence of local judges in keeping with the provisions of the 1997 Trial Court Funding Act. The legislation established a system of statewide funding for the trial courts, but it also required the Judicial Council to set up "a decentralized system of trial court management."
The president of the California Judges Association, a more longstanding group of judges whose members at times overlap with the Alliance membership, said his group started raising concerns about the commission's ideas late last year.
"Many courts have expressed great concern about thoughts to centralize human resources, labor talks and administration," said Judge Eric Taylor, the CJA's president. "These are complex issues involving sensitive local relationships in vastly unique courts across our state. The way of CJA is to fully collect and discuss information on all pertinent topics in order to take meaningful positions."
Another line of attack on the commission's early work has come from labor unions.
California courts employ thousands of workers and some of the ideas floated by the commission, such as the centralization of labor negotiations, raised criticism from labor leaders who also see the old AOC's hidden hand.
"The Futures Commission is speculating that centralization rather than local autonomy will achieve savings," wrote Michelle Castro in an email on behalf of the Service Employees International Union. "But given the bureaucracy's track record of centralization debacles and its history of waste, we are doubtful. Again and again, the central authorities target frontline service providers for cuts, which means that services are degraded and the public suffers. This is no different."
Included on the commission's Monday's agenda are three controversial subjects: the centralization of labor negotiations and hiring policy, replacement of court reporters with automated recorders, and the sharing of case information along with a concern about "incompatible case management systems."
That last agenda item raised the ghost of a massive, failed effort to create docketing software common to all California trial courts, called the Court Case Management System. The project cost California taxpayers more than a half-billion dollars and became a bête noire of the California Legislature, the CJA and the Alliance.
Included among the names on the futures commission are three clerks with deep roots into the past, Mike Roddy, Michael Planet and Jake Chatters who all cooperated closely with the AOC to install the problematic and labor-intensive software in courts where they worked, Roddy in San Diego, Planet in Ventura and Chatters at the time in Sacramento.
The software project was fought tooth and nail by the Alliance.
"We are deeply concerned that the Commission will propose a statewide case management system along the lines of CCMS, the failed technology project that cost the taxpayers half a billion dollars and brought our branch to the brink of financial ruin," wrote Alliance president Judge Steve White in a letter sent Tuesday to Justice Corrigan.
"The mentality that bigger is better, central control is better than local administration, and uniformity is better than diversity, is what led to a series of administrative disasters culminating in the spectacular failure of CCMS," wrote White, who sits in Sacramento.
But Corrigan distinguished the work of the commission from past administrative endeavors and any suspicion of an underlying agenda. "This is not an implementation group. It's an examination group," she said. "This undertaking is nothing like CCMS."
Corrigan added that the concepts that will be discussed at Monday's public meeting originated from judges and court clerks, not from AOC staff members, via a survey sent out statewide last year. "The notion that there are some hidden bureaucrats with an agenda who are driving this is simply not the case," she said. "Every single response went to the judges, justices and court executive officers on the commission. They reviewed those suggestions themselves."
Lampe with the Alliance acknowledged that point.
"We understand these are just concepts. We know there's no proposal for implementation at this time. But these ideas being advanced sound to us like ideas that have been advanced historically by the staff and the AOC that reflect increased control by state administration," said Lampe. "So we just want to be on the record of stating that in the comment process, so members are aware that a substantial number of judges are concerned and have always been concerned about this."
The other agenda item on centralizing employment policy and labor negotiations caused a separate reaction from a group of nine unions representing court workers, saying it makes no sense to dismantle a local employment structure built over many years.
"The current trial court employment structure was created through a very deliberative and meaningful process that considered efficiency of administration, employee rights and interests, as well as the unique nature of each individual county-based trial court," the letter says. "The existing system allows trial courts and their employees to address their own needs based on their local circumstances and workloads."
The third controversial item on the agenda, replacing court reporters with automated recorders, was questioned by trial judges as well as labor.
"It's been a long standing effort of the AOC to increase electronic recording," said Lampe. "We as judges have experience with both electronic recording and court reporters. There's no comparison. The electronic recording is a mess, you can't make sense of it. Until somebody invents the technology that will literally transcribe everybody's words as spoken without confusion, so be it. But it doesn't exist now. So we see these proposals as being vestiges of a continued effort that we've seen in the past."
On that point, Corrigan said it's the commission's job to explore all sides of every idea, even the old ones.
"Wonderful, well-meaning people have said 'why don't we try this,' and at first blush it looks like a great idea. And then we launch that idea without looking at what it costs us. One of the reasons we're asking the questions is periodically people come up with these ideas and then they get kicked around for years or decades. We'd like to be able to say we studied that idea and it cost us 'x' or it would cost us 'y.'"
The supreme court justice said she understood the judges' reservations and concerns about the commission's work masquerading as a bureaucratic power grab.
"There are people, and not without some historical foundation, who just assume that's the way everybody rigs the system," she said.
Corrigan pointed to a 2009 effort to take away the authority of the local courts to choose their own presiding judges and head clerks and transfer that power to the central bureaucracy. "That was greatly controversial, and legitimately so," she said. "However that didn't happen. And that's not what we're trying to replicate."
California Court Workers Rail Over Centralization and Machines in Think Session
By MARIA DINZEO
SAN FRANCISCO (CN) - On Monday, trial court workers and court reporters lined up in fierce opposition to what they see as efforts to centralize the way courts are run and replace human court personnel with machines.
The Commission on the Future of California's was created in 2014 by California Supreme Court Chief Justice Tani Cantil-Sakauye to find ways of running California's courts more efficiently, with an eye toward economy and innovation.
At the outset of a public comment session Monday, commission chair and California Supreme Court Justice Carol Corrigan said no idea was off the table.
"We know that change is hard and it can be scary," Corrigan said. "Especially when you're in the middle of it."
She added that the commission's task was to recommend ideas to Cantil-Sakauye, and to give an informed opinion on whether those ideas will work for the courts.
"Sometimes the most important aspect of any inquiry is answering why and doing so in concrete terms," Corrigan said. "What would this new idea accomplish? What will it cost us? What are the potential downsides? What are our recommendations for weighing those competing interests? The goal of our work at the end of the day is to facilitate informed decision-making."
Court reporters from up and down the state sharply criticized a proposal to examine the costs and benefits of recording court proceedings electronically. The commission's Monday agenda broadly outlined a need to create a verbatim court record, and noted that in civil and family court cases no record is currently required by law.
The concept proposes possible statutory changes to allow recording by machine in such cases, especially in family court where litigants may not be able to afford to purchase the transcripts created and owned by court reporters.
Brooke Ryan, a court reporter in Sacramento and president of the California Court Reporter's Association, asked the commission to reject electronic recording.
"Let me be clear, electronic recording devices provide a less effective, less reliable, less accurate and incomplete court record," Ryan said. She gave as an example Sacramento Superior Court, where recording devices fail to pick up the voices of female judges.
"Why would you allow someone's legal rights to be jeopardized because of an obsession with low-level technology, technology that has proven to be ineffective time and time again?" Ryan said.
Carolyn Dasher, a court reporter from Los Angeles, told the commission that her county's streaming transcript indicated that some soft-spoken judges' remarks hasn't been captured by the recording device.
"That would never happen if there is a live court reporter in this room," she said.
Kimberly Rosenberger with the Service Employees International Union said an electronically produced transcript could be a good supplement, but should not be a replacement.
"Electronic recordings are often incomplete, inaccurate, the current technology is costly, time-consuming and problematic for a number of reasons," Rosenberger said. She noted that transcripts for meetings of the Judicial Council, the rule-making body of the courts, are unreliable and costly to produce.
"We fully embrace technology. We want to make it clear that it should be used supplementing our personnel not replacing them," she said.
Rosenberg also spoke forcefully about another controversial item - whether to centralize labor negotiations. She tied the concept to a proposal floated in December to bring court human-resources policy under the purview of the Administrative Office of the Courts, the San Francisco-based central bureaucracy of the courts now called the Judicial Council staff.
At its December meeting, the commission said the idea had not come up in any of its subcommittees and that claims it had were based on "misinformation."
"We were told it wouldn't be on the table. But yet here we are the following Futures Commission meeting discussing it," Rosenberger said.
She urged the commission not to change the current system of negotiating labor agreements, currently done with the state's 58 trial courts individually.
"The current system in place is one of the most well-researched collaborative and constitutional HR systems in the country," Rosenberger said. She noted that while the commission's proposal pointed to inequities in pay for court workers by county, it's because court workers are competing with other government jobs.
Debbie Pearson, an Alameda County Superior Court employee and local SEIU chapter president, said it would be near impossible to implement a one-size-fits-all approach, as each collective bargaining unit understands who it represents and the needs of the employees it represents in each court.
"It's pretty hard to keep track of one court, let alone 58, so I think that it does an injustice to the courts, the trial courts, to bring it under one roof," Pearson said.
She added that Alameda County's collective bargaining unit was recently able to win a pay raise for the court's workers by negotiating directly with the court to stay within its budget, which it would not be able to do if negotiations were centralized.
One speaker, a former Administrative Office of the Courts senior attorney named Michael Fischer, said the commission should not be afraid to do things on a statewide basis. The demise of the Court Case Management System, a failed effort to create docketing software common to all California trial courts, had made everyone skittish, he argued.
"The argument is that all statewide solutions are flawed because one was not successful," he said, adding, "History is replete with examples of initiatives that failed at first, yet eventually became routine."
The project, criticized by judges, court employees and the legislators as a boondoggle, cost California taxpayers more than a half-billion dollars before the Judicial Council pulled the plug.
Jerry Garcia, a court employee in Alameda County, compared the centralization of labor to CCMS.
"CCMS didn't work. I was a part of that. So I would just urge you to consider what is happening with each of our counties," he said. "Each situation that's different, the different people and the different employment that's given in each county is different. I don't think it would be justice to centralize it."