Good morning. I am pleased to be
here once again to address the Annual State Bar Meeting and the
Conference of Delegates. I thank you as representatives of the
local bars across California for your involvement and dedication to
improving the administration of justice in our state.
I especially want to express my
appreciation to Jim Heiting and the entire Board of Governors of the
State Bar of California for their support and contributions during
the past year. And congratulations to Shelley Sloan, the incoming
president, and to the new board members. I and the entire Supreme
Court and the Judicial Council look forward to working with you
during the coming year on the many challenges facing our courts and
the legal profession.
Each of these two bar leaders has
initiated important programs to advance the bench and bar’s shared
goals of improving our service to the public. First, Jim Heiting
has been a major catalyst in creating the Pipeline Project, aimed at
increasing the presence of all segments of California’s diverse
population in the bar and the bench especially those groups who
traditionally have not fully participated.
Enhancing diversity to better
reflect the community we serve also has been a priority of the
Judicial Council. During the past summer, in a letter to Governor
Schwarzenegger, I described a summit on diversity that the Judicial
Council had convened earlier in the year and some of the conclusions
it had reached. The letter also contained some suggestions about
expanding the reach of the current judicial selection process to
produce a bench more reflective of California’s varied population.
Along with many others, I engaged in related discussions with the
Governor and his staff as well as legislative leaders and staff,
particularly Assembly Speaker Fabian Núñez, who has been a leader in
these efforts. I look forward to seeing an increasingly diverse
bench that more fully reflects the population served by the courts.
The second bar leadership
initiative that I want to mention comes from your incoming
president, Shelly Sloan, who already has announced that he will be
focussing on increasing civility in the practice of law. It is
unfortunate but true that there is a need for the bar and the bench
to explore this issue and develop ways to decrease the over-zealous
advocacy that we increasingly encounter. We must remind ourselves
that lawyers are not simply advocates they are officers of the
court.
Of course the role of the lawyer is
to represent his or her client and the client’s interests but good
lawyering does not mean becoming the alter ego of the client, or
being willing to win at any cost in order to please. Courts are
designed to provide a forum for the peaceful resolution of disputes,
and the practice of law is intended to facilitate that process not
to inflame it.
We risk undermining the fundamental
principles of our profession, and our ability to defend and advance
the rule of law effectively, if the focus turns primarily to profit
at the expense of professional duties and responsibilities. After
all, we are members of a profession and are not merely engaged in a
business. Shelly’s statewide initiative to improve civility in our
profession stands to benefit everyone the individuals, the
institutions, and the companies you represent, yourselves, the
courts, and the entire administration of justice.
Last May, I celebrated my tenth
anniversary as Chief Justice of California. This occasion provided
an opportunity to reflect on some of the profound changes that have
occurred in the judicial branch over the past decade, as well as to
consider what remains to be done.
This past year has been an
especially busy and productive one, and the success of the Judicial
Council’s ambitious legislative program was greatly aided by the
Bar. Members of the bar visited legislators and staff and executive
branch staff, wrote articles, made phone calls, met with editorial
boards of newspapers, engaged in public forums, and generally
stepped forward to work toward strengthening the judicial branch’s
ability to better serve all the people of our state.
We had three major goals this
year. At the outset, it seemed that if we achieved one, we would be
doing well, two would be excellent, and all three would be
phenomenal. With the help of the Bench-Bar Coalition and other
segments of the bar, as well as the members of the Judicial Council
and its committees and task forces and individual judges and courts
and with excellent assistance from the Administrative Office of the
Courts led by its tireless Director Bill Vickrey and his Chief
Deputy Ron Overholt and our very effective Office of Governmental
Affairs we were successful in all three endeavors: increasing
judicial compensation, obtaining new judgeships, and facilitating
the process of transferring local courthouses to state ownership
under judicial branch management.
In addition to the efforts I
described to increase the diversity of the bench, the court system
focused on maintaining and enhancing the quality of its judicial
officers and on creating new judicial positions to meet the
ever-growing needs of litigants in the fastest growing areas of our
state.
For several years, the need to
raise judicial salaries has grown more and more urgent. Not that
many years ago, joining the bench typically involved being paid a
salary that was at the forefront of the legal profession. Judges
today have abandoned that expectation. We do not seek to match the
amounts paid by major law firms to their partners or in many
instances, even to their associates.
Nevertheless, the inadequacy of the
compensation provided to individuals serving on the bench has been
highlighted by the circumstance that, for several years now, judges
regularly preside over matters in which the public lawyers appearing
before them are paid a higher salary than the judge.
Governor Gray Davis agreed to a 17
percent increase in judicial compensation, to be paid in equal
increments over 2 years. We received the first 8.5 percent, but the
second portion was sidetracked as the state’s fiscal crisis
intensified. This past year, Governor Schwarzenegger and the
Legislature provided funding for the remaining 8.5 percent increase,
which is in addition to the several percentage increase that judges
will automatically receive based upon comparable increases paid to
state employees.
These increases certainly will help
the situation, but providing appropriate compensation for judges is
a continuing effort, and as has been true in the past your
assistance and support will be crucial. Many judges who have left
the bench have told me they do so with great regret. They love
judging but they feel a need to earn more in order to provide for
their families, especially children headed toward college. We
should not be losing experienced judges because they cannot afford
to stay on the bench. Nor does it make sense for the state to have
to pay a pension to a retiring judge who might have stayed, while
also paying the salary of his or her replacement on the bench. And
we must revise the Judicial Retirement System, because it is a
deterrent to many excellent individuals taking the bench.
A second major problem has been
insufficient judgeships to meet the demand of a growing population
and increased caseload, especially in the Inland Empire and the
Central Valley. The Riverside Superior Court, for the second year
in a row, was required to suspend its entire civil trial calendar
for several weeks in order to avoid the dismissal of criminal
matters.
In a recent study, the National
Center for State Courts estimated that California needed 355 new
judicial positions based upon increases in caseloads. We decided to
seek the 150 most urgent positions over the next 3 years, requesting
50 judgeships each successive year. The new positions are to be
allocated pursuant to the Judicial Council’s Judgeship Needs Study.
After some nerve-wracking moments
toward the end of the legislative session, when the judgeships
became a negotiating issue between our sister branches of
government, we were gratified to have the Governor sign the bill, SB
56 authored by Senator Joe Dunn, adding the first 50 judges in the
coming year.
Each year, there are fewer lawyers
in the Legislature and they, like their colleagues, soon are term
limited out of office. This makes it difficult to establish
expertise and an institutional memory in Sacramento for issues
affecting the bench and the bar. We need your help to explain why
adequate judicial positions and fully functioning courts are just as
important a part of the infrastructure of our state as its highway
system. Judgeship shortages decrease the public’s access to courts,
foster an unstable business climate, and create enormous backlogs in
the fastest growing parts of our state, delaying timely justice.
We will be seeking the second
installment of 50 judges for the next fiscal year. And we shall be
sponsoring a bill to permit the conversion of 161 commissioners to
judgeships over a period of several years. Conversion would occur
when the position becomes vacant and no longer is needed for
subordinate judicial work. Commissioners earn a salary that is not
significantly less than that of judges, but several considerations
make the switch to judicial positions desirable.
First, commissioners may preside
over matters only by stipulation of the parties. They are selected
by the local court, and do not undergo scrutiny by the Governor, the
State Bar’s Judicial Nominees Evaluation Committee, or the
electorate. Originally intended to preside over lesser matters in
the courts, in many counties commissioners increasingly have been
hired to fill in the gap of needed judgeships, and been assigned to
preside over significant cases — even death penalty trials and
multi-million-dollar civil litigation — because of the lack of an
adequate number of judges. Rather than assigning commissioners to
serve as judges in every capacity, we should ensure that those
presiding over significant legal issues are duly appointed and
elected judges.
Our third major goal for the year
was to increase the pace of the transfer of court facilities from
the counties to the state. The condition of many courthouses in
California is dangerous to the judges, staff, lawyers, litigants,
jurors, and other members of the public who enter their doors.
Whether it is a lack of security that results in prisoners being
transferred through public areas, or insufficient weapons screening,
or buildings that are at threat in a moderate earthquake or are
infested with mold and vermin, such conditions are unacceptable.
It is estimated that in Los Angeles
alone, each year one half of the population visits a courthouse as a
litigant in a small claims or other proceeding, or as a witness or
juror, to obtain documents, to resolve a family law dispute, or to
pay a citation. They, and all those who use court buildings, should
not be at physical risk every time they step inside court facility.
The transfer of courthouses has
been very delayed because of the poor condition of many county-owned
facilities. Counties, besieged by numerous competing demands,
understandably often are not eager to spend their tight resources on
improving these buildings. Court funding is now a state function,
and counties often allocate their resources to meet other local
needs.
At the same time, the state has
been unable to assume ownership of seismically deficient facilities
under the existing statutory scheme. Far more courthouses turned
out to be in worse seismic shape than anticipated. Senate Bill 10
changes the law so that counties no longer must bring these
buildings up to code in order to be able to hand them over to the
state, and thus will be permitted to transfer seismically unsafe
buildings. In exchange, the counties have agreed to retain
liability arising out of seismic deficiencies for the buildings for
35 years or until the buildings no longer are used for court
purposes.
Facilitating these transfers will
permit the judicial branch to direct state resources to buildings
that need repair or replacement, and alleviate the problem of
counties understandably reluctant to expend additional resources to
qualify for a transfer of facilities to the state. We anticipate
that this measure will greatly hasten the placement of courthouses
under state ownership and judicial branch supervision, and speed the
necessary repairs or replacements.
We also are very pleased that the
Legislature and the Governor this year enacted important legislation
to improve the court conservatorship and foster care systems.
At the Supreme Court, we have been
busy as well. We welcomed Justice Carol Corrigan in January, and
she has been a quick study and active participant in the work of the
court. The court earlier this week again conducted one of its
special oral argument outreach sessions away from its traditional
sites this time in Santa Barbara targetting the local high school
population.
We continue to make progress in
reducing the number of appellants in death penalty cases who are
awaiting the appointment of counsel. The court still needs
additional counsel not only for appeals, but even more so for
related habeas corpus proceedings.
During the last legislative session
we were unsuccessful in raising the statutory limit on payment for
investigative expenses in these habeas corpus proceedings, but the
court will renew its request to change the $25,000 cap to give us
more flexibility in setting the reimbursement level in these
matters. We also will be studying our internal procedures to see
whether there are additional basic changes that can be made to
expedite and improve the processing of capital cases.
I strongly urge those of you who
are qualified to seek an appointment to a death penalty appeal or
habeas corpus case. We also have created, in conjunction with the
Habeas Corpus Resource Center and the California Appellate Project,
a program offering special supervision for attorneys in large firms
willing to take these cases. The aim is to provide targeted
assistance to enable these firms to handle these cases effectively
and efficiently.
Looking ahead to the next 10 years,
I am keenly aware that the progress that the judicial branch has
made in so many areas has been due to the remarkable dedication of
those on California’s bench and in its bar. But the work of
improving the administration of justice is far from done. Many
challenges lie ahead. Unrepresented litigants, particularly in
family law matters, continue to place difficult demands on the
courts and we must continue to develop ways to assist these
litigants in effectively accessing the court system.
Interpreter services continue to be
a critical component of access to justice for many Californians.
The Judicial Council is committed to continuing to work with the
Governor and the Legislature to expand our programs to train, test,
and certify qualified interpreters for the more than 100 languages
translated each year in California’s courts. We believe the types
of proceedings in which interpreters are provided by the courts
should be expanded to include family law and small claims matters.
We also are moving forward to
improve the use of technology in the courts. Effective case
management systems already are in use in many locations, and will be
expanded. Providing additional electronic access to the public is
an ongoing project across California.
Ultimately what all of this is
about is improving access and fairness in our court system. That
has been a paramount goal of the Judicial Council for more than a
decade ? and it will continue to be our goal in the future. We are
committed to responding to the appropriate needs of the public, and
to providing a strong and independent judicial system.
We need the bar’s close attention
in one other respect: to ensure that California’s courts remain
objective and independent. If they are not, all these projects and
plans will be mere window-dressing.
There are troubling developments on
a number of levels that have the potential to undermine the ability
of courts to perform their historic and constitutional functions.
Increasingly contentious and partisan judicial elections are on the
rise.
I spoke last week on this subject
at a conference held in Washington, D.C., on this subject, organized
by Justices Sandra Day O’Connor and Stephen Breyer, and attended by
most of the justices of the United States Supreme Court as well as
leaders of the nation’s legal, governmental, and business
communities. One of the examples I discussed was the South Dakota
initiative measure that will appear on the ballot next month
entitled “Judicial Accountability Initiative Law,” with the catchy
acronym “Jail4Judges.” Upon a finding of abuse of judicial
discretion made by special grand juries, this measure would
eliminate judicial immunity for judges, subject them to possible
civil and criminal sanctions for decisions rendered in the course of
their judicial duties, and render them ineligible for judicial
service during their lifetime.
I could go on with other examples.
For the most part, we have not yet seen this level of inflammatory
developments affecting the selection of judicial officers here in
California although I should note that the South Dakota initiative
originated with a California group that wants to pass the measure in
several small states before bringing it here. But we cannot assume
we are immune, and if we ignore the trends that are testing the
limits in other jurisdictions, we do so at our own peril.
In November, the Judicial Council
is convening a national conference on judicial elections, and we
anticipate it will result in a plan for action in the future. Such
a plan, I know, will look to the bar to provide collaborative
assistance and strong support to keep our courts as free as possible
of inappropriate partisan politics and influence and maintain the
rule of law as a cornerstone of our democracy.
Let me close by once again thanking
you for your help in enhancing the fair and accessible system of
justice that we are privileged to have in our state. This task is a
noble one and it will never be done. I look forward to working with
you for many years in the future to ensure that California’s courts
continue to administer justice objectively and effectively for all
Californians.