Judges and Judiciary A Merry-Go-Around With No Beginning and No End
By Quentin L. Kopp
April 18, 2011
In 1997, the Legislature adopted the Lockyer-Isenberg Trial Court
Funding Act, transferring funding for the courts from the counties to
the state. I was then a member of the California Senate, serving with
Sen. Charles Calderon, a practicing lawyer who is now the Assembly
majority leader. I chaired the Senate budget subcommittee that
supervised the budget of the courts. Additionally, I am a retired
judge of the San Mateo Superior Court, who was a trial lawyer for 43
The Legislature enacted Lockyer-Isenberg to ensure stable, adequate,
and equitable funding for the state's 58 independent trial courts. I
supported the bill. It was praised as a cost-saving measure. The
Legislature never thought the legislation would be used to convert
administration of the courts to a statewide bureaucracy of over 1000
employees, roughly one-third of whom are paid more than $100,000 per
year. Top administrators, in fact, are paid more than the governor. To
the contrary, the Legislature made clear its concern about
bureaucratic encroachment into trial court prerogatives by encouraging
the Judicial Council to adopt a Trial Court Bill of Financial
Management Rights within a year. The Council ignored it. Thus, the
Trial Court Rights Act of 2011 (AB 1208), drafted by judges, must be
enacted to provide long overdue trial court protections for litigants
The Judicial Council does not govern the trial courts. It exists by
virtue of a 1926 amendment to the California Constitution, which
specifically limits its powers: "...the council shall survey judicial
business, make recommendations to the courts, make recommendations
annually to the Governor and Legislature, adopt rules for court
administration, practice, and procedure, and perform other functions
prescribed by statute." (Article VI, Section 6(d).)
A 1960 amendment creates the position of "administrative director of
the courts," who "serves at [the Council's] pleasure, and performs
functions delegated by the council or the Chief Justice...."
The Administrative Office of the Courts (AOC) has no constitutional
root. It was created in 1961 when the Legislature authorized its
funding. It is the administrative arm of the Council and performs
certain statutory mandates.
Former Chief Justice Ronald M. George aggressively sought to amend
Article VI to give the Council additional powers, including the power
to "establish policies;...establish fiscal and budget procedures for
the courts and the council; (and) allocate appropriations and other
funds available to the courts and the council." Each attempt failed
because the Legislature and trial judges resisted ceding unchecked
power over the state's independently elected trial courts to one
The AOC constantly solicits the Legislature for additional power. In
2009, the AOC proposed legislation that would have fundamentally
altered the governance of trial courts and dramatically diminished
trial court independence. Consider the changes proposed:
Amendments to Section 77001 of the Government Code
The Council had nothing to say about this radical AOC proposal but
thankfully, the intervention of trial judges aborted the attempt.
If forays into the legislative arena fail, the AOC resorts to the
Council's rule-making authority. In December 2010, the AOC began
efforts to amend the California Rules of Court to diminish the power
of presiding judges over their chief executive officers, and force
courts to adopt and implement "long term plans" consistent with
Council directives. The Council's published "long term plan"
(promulgated in secret - even trial court judges are not allowed to
review the agenda for yearly planning meetings, much less attend them)
calls for a California Court Case Management System (CCMS) for all 58
Over the years, the Council's Executive and Planning Committee (run by
one person for 14 years) has built a so-called "governance structure"
anchored by Rules of Court that were passed without public circulation
or public debate. These "Title 10" rules purport to allow virtually
any action by the Council and AOC. Thus, the Council, without
constitutional authority and in spite of a failed 2005 attempt to
amend the Constitution to include such language, declares itself the
"policymaking authority" for the entire judicial branch. It uses the
phrase to describe itself on its website and in various publications.
An unmistakable circular situation exists whereby AOC staff creates
policies; the Council adopts them after "planning sessions" closed to
the judicial branch, and the policies become "goals." Then Title 10
rules purportedly grant the AOC director almost limitless authority.
Rule 10.80(b) and (c) state that "the Director's charge is to
accomplish the council's goals...and he may use reasonable
interpretation of Judicial Council policies to achieve the council's
Such a merry-go-round has no beginning, and apparently no end. There
are no limits, no "line in the sand" for the AOC or the Council to
respect. The Council is free to create "policies" from thin air, turn
them into "goals", and instruct the AOC director to implement them by
any means he deems legal. The AOC perceives no reason to stop itself.
Last year, it seriously suggested the Council and AOC write the K-12
civics curriculum for California's schools. The AOC has even floated
plans to scrap court security in favor of its own police force.
This astonishing situation is what produced the CCMS debacle. No
Council vote ever authorized its commencement and after serious
irregularities appeared, the AOC, Council members and their paid
lobbyists fought a legislative audit of the program. The audit
revealed massive embarrassing mismanagement and a near total absence
of Council oversight of the probable $3 billion dollar debacle. This
farrago has already produced punishing legislative proposals that the
AOC and the Council appear to expect trial courts to bear. A recent
survey of state judges by the California Judges Association revealed
overwhelming dissatisfaction with the current governance structure -
by an almost two to one majority.
The enemy is not the Legislature. The enemy is the unfettered urge of
an out-of-control bureaucracy to accumulate power. It emanates from
the failure of the Council to state clearly, as it was requested to do
in 1997, the proper balance of authority between administrators and
the 58 trial courts and accordingly limit the activities of its
AB 1208 represents a modest bill, which restores balance. It does not
intrude upon the Council's legitimate rule-making authority. Neither
does it in any way intrude upon the Council or AOC's authority to
allocate funding to the trial courts.
It will prevent the AOC from raiding the Trial Court Trust Fund for
favorite projects without express consent of the trial courts, or
diverting monies allocated to the trial courts for their operations.
It will allow the 58 courts a voice in the location of new courthouses
and allow them to be named by the local courts, not the AOC. It will
allow each court to retain counsel rather than forcing reliance upon
the often conflicted advice of AOC general counsel.
The ferocity with which the AOC opposes such common-sense protections
speaks as loudly as its attempt to kill the recent CCMS audit. The
Legislature was right to step in then as requested by trial judges and
right to step in now as again requested by those same judges.
Quentin L. Kopp is a former member of the California Senate (1986-
1998) and a retired judge of the San Mateo Superior Court.