Who Really Runs the Judicial Branch
By Maryanne G. Gilliard
March 15, 2011
Over the past 10 years, repeated clashes have erupted in the
judiciary, all revolving around one question: Who really runs our
judicial branch? The reality is that an imbalance of power currently
rests in an insular triumvirate: the chief justice; William Vickrey,
the director of the Administrative Office of the Courts; and the
chairman of the Judicial Council's Executive and Planning Committee, a
14-year council veteran.
In 1997, the Legislature, at the urging of the former chief justice,
passed and the governor signed into law a bill called the
Lockyer-Isenberg Trial Court Funding Act of 1997. The laudable goal of
the bill was to equalize funding among the 58 county trial courts by
placing into the hands of the Judicial Council the power to allocate
funding to the trial courts.
At the time, judges expressed concern that giving unfettered power to
the Judicial Council and the AOC would erode the ability of our courts
to respond to the needs of local communities and would foster a
centralized bureaucracy, whose chief goal would be to serve itself.
Responding to these concerns, the Legislature placed language in
Lockyer-Isenberg directing the council to create a "Trial Court Bill
of Financial Management Rights." They never complied, though the AOC
continues to publicly maintain otherwise.
The AOC does not believe its own spin. In late 2009, AOC Assistant
General Counsel William L. Kasley told the Alliance of California
Judges that a Judicial Council financial policy manual and rules of
court adequately addressed the issue. But, in responding to reporter
Kenneth Ofgang's question, "Where is the Bill of Rights," the AOC
inadvertently forwarded him an internal e-mail that contained this
statement from AOC spokesperson, Phil Carrizosa:
"On this point, I think the Alliance is correct - the Legislature did
ask the Judicial Council to draft a Trial Court Bill of Financial
Management Rights and the council never did that. The finance policy
quoted by Kasley specifies nothing about those rights."
"All we can do is emphasize that the finance policy recognizes that
each trial court is responsible for managing its own operations."
"Good luck in selling this approach to Ken."
The concerns of those judges who sounded the alarm in 1997 have been
realized. The AOC has grown from 268 employees to over 1100. The chief
justice appoints 15 of the 21 members of the Judicial Council. The
Executive and Planning Committee has imposed sweeping governance
changes without public debate, without public circulation and without
a public vote of the Judicial Council. The committee sets all council
agendas, determines who addresses the council and what they may say,
and who can be considered for council and advisory committee
membership. (Rules 10.6 and 10.11) A rule passed without public
circulation or comment in August 2009 allows the Executive and
Planning Committee to act for the entire council in non-public votes.
(Rule 10.11(a)) It was used on Dec. 17, 2010, when a telephonic vote
relegated the council to "sponsor" status and gave Vickrey exclusive
authority to select the members of the committees to oversee the
California Case Management System (CCMS).
Vickrey has been delegated policy making authority, policy
interpreting authority and budgeting authority by the Judicial Council
and chief justice. (See California Rules of Court 10.2(b)(4),
10.101(d), 10.80(d)). The truth is that since 1997, the AOC has
seized, and been ceded, much power and in return has received no
serious or meaningful oversight by the council. Council votes are
simply predictable endorsements of AOC projects and programs. No AOC
staff recommendation has ever been rejected by the Judicial Council.
The AOC is simply out of control. Its excesses have harmed the
judiciary's reputation immeasurably. It employed unlicensed
contractors, resulting in a lawsuit to recoup millions, and spurring
legislation introduced in the current session. The alleged
mistreatment of an AOC employee, who informed the press of the lavish
spending at a council planning session on the budget shortfall,
resulted in last year's enactment of whistle-blower legislation now
affecting all 58 trial courts, not simply the AOC.
In June of 2009, using authority delegated by the council to submit
legislation during budget negotiations, the AOC surreptitiously
submitted trailer bill language to gut Government Code Section 77001
to remove all statutory authority for local court control, including
the power of courts to select their own presiding judges. When
uncovered, they first falsely blamed the Department of Finance, and
later were forced to admit their involvement.
The crown jewel of the AOC is CCMS. Last year, the Alliance of
California Judges fought for a legislative audit of CCMS. The former
chief justice, the AOC, and the current head of the CCMS "oversight
committee" all weighed in against it.
Thankfully, our side prevailed. The February 2011 Bureau of State
Audits report reveals a stunning record of failure, misinformation,
mismanagement, and lack of oversight. The project, first slated at
$250 million, may top out at $3 billion and will likely be obsolete by
the time it is fully deployed in 2016.
The reaction by the Judicial Council and the AOC to this devastating
audit has been shameful. In the immediate aftermath, judges received
an e-mailed infomercial produced by the AOC's "news bureau" announcing
all was well because new oversight committees had been formed. Within
24 hours judicial leaders proclaimed it was time to "move on."
The damage done by this debacle is now nationally known: An Associated
Press headline on March 12 reads "Computer Mess Jeopardizes Court's
Political Clout." It appeared in over 300 newspapers, including the
Sunday New York Times, within hours.
Particularly troubling to many judges is the concerted campaign by
some Judicial Council members, AOC staff, and others aligned with them
to discredit and marginalize those who dare to express a contrary view
regarding our branches' obvious failings. Judges have publicly been
dismissed as "ants," "shrill," "uninformed" (former chief justice),
"clowns" (chairman, Executive and Planning Committee), "chicken
little," and "strident" just to name a few. These ad hominem attacks
are not limited to judges. Recently the chairman of the CCMS Executive
Committee accused respected State Auditor Elaine Howle of being
unfair, after she released a report criticizing the assumption laden
cost benefit report purchased by the AOC. The chairman even suggested
Howle inappropriately released her critique early to the "most
strident" CCMS critics. One legislator observed: "I can't believe the
AOC wants to get into a credibility contest with the State Auditor."
The Alliance is sponsoring a solution in AB1208 (Calderon), "The Trial
Court's Rights Act of 2011." This bill clarifies the powers and
responsibilities of the Judicial Council, AOC and our 58 trial courts.
To those who would argue this bill represents legislative intrusion
into the court's business, please realize that the structure of state
trial court funding is itself a creature of statute. Also, bear in
mind the only time the AOC complains about the "camel's nose under the
judicial tent" is when judges propose legislation that would rein in
their fiscal mismanagement and overreaching actions - otherwise, the
AOC appears quite camel friendly.
To those who ask why we have not kept these problems "in house" we
respond: Judges have tried. For instance, on Jan. 21, 2010, the
president of the Alliance traveled to San Francisco to deliver a
two-minute pre-approved statement to the Judicial Council. The chief
justice ordered him to stop once he reached the point in the statement
where "governance" was mentioned. When the president of another
judges' organization complained about AOC raises at the Dec. 15, 2009
council meeting, the Executive and Planning Committee chair responded:
"I'll be damned if I'm of a mood to support some major overhaul of the
Judicial Council's governance policy because of some newspaper
articles that caused some judges to get angry." The council did react,
forming a new "accountability" committee. That committee has taken but
one action since then - it recommended retroactive pay raises for the
The Alliance is not out to dismantle statewide rules that ensure the
fair and consistent administration of justice as some have falsely
claimed - AB1208 does nothing to the Judicial Council's constitutional
rulemaking authority. We simply insist that our judiciary be
controlled by those who are ultimately responsible for its successes
and accountable for its failures - the judges of the state's 58 trial
courts. AB1208's modest reforms will assist us all in realizing that