Existing law specifies the number of judges for the superior court of each county. Existing law allocates additional judgeships to the various counties in accordance with uniform standards for factually determining additional judicial need in each county, as updated and approved by the Judicial Council, pursuant to the Update of Judicial Needs Study, based on specified criteria, including, among others, workload standards that represent the average amount of time of bench and nonbench work required to resolve each case type.

This bill would require the suspension of 4 vacant judgeships, as defined, in superior courts with more authorized judgeships than their assessed judicial need. The bill would require the allocation of 4 judgeships to superior courts with fewer authorized judgeships than their assessed judicial need and would require the judgeships to be funded using existing appropriations for the compensation of superior court judges. The bill would require the suspension to be in accordance with a methodology approved by the Judicial Council, as specified, and would require the determination of a superior courts assessed judicial need to be in accordance with the above uniform standards and be based on the criteria described above. The bill would require the Judicial Council, if a vacant judgeship is eligible for suspension, to promptly notify the applicable courts, the Legislature, and the Governor that the judgeship will be suspended, subject to approval by the Governor.

This bill would also make a statement of legislative intent regarding the authority of the Legislature, the Governor, and the Chief Justice of California.

Existing law specifies the number of judges for the superior court of each county. Existing law allocates additional judgeships to the various counties in accordance with uniform standards for factually determining additional judicial need in each county, as updated and approved by the Judicial Council, pursuant to the Update of Judicial Needs Study, based on specified criteria, including, among others, workload standards that represent the average amount of time of bench and nonbench work required to resolve each case type.

This bill would require the suspension of 4 vacant judgeships, as defined, in superior courts with more authorized judgeships than their assessed judicial need. The bill would require the allocation of 4 judgeships to superior courts with fewer authorized judgeships than their assessed judicial need and would require the judgeships to be funded using existing appropriations for the compensation of superior court judges. The bill would require the suspension to be in accordance with a methodology approved by the Judicial Council, as specified, and would require the determination of a superior courts assessed judicial need to be in accordance with the above uniform standards and be based on the criteria described above. The bill would require the Judicial Council, if a vacant judgeship is eligible for suspension, to promptly notify the applicable courts, the Legislature, and the Governor that the judgeship will be suspended, subject to approval by the Governor.

This bill would also make a statement of legislative intent regarding the authority of the Legislature, the Governor, and the Chief Justice of California.

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 39 (Roth) - Suspension and allocation of judgeships

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 39 would authorize the reallocation of four vacant judgeships from superior courts with more authorized judgeships than their assessed needs to superior courts with less authorized judgeships than their assessed needs.

Fiscal Impact:

• Potential major future costs of about $6.35 million (General Fund*) annually to fund four judgeships and the required complement of staff sooner than otherwise would occur under the existing allocation of these positions to the extent that the vacancies at courts with more judgeships than their assessed judicial need are not currently funded.
• Potential major future costs of about $6.35 million (General Fund*) annually to maintain current funding levels for the courts in which the four vacant judgeships are suspended to the extent those vacancies are funded before the suspension.
• Approximately $50,000 (General Fund*) in one-time facilities and overhead costs to establish a new judgeships if all four judgeship reallocations were to occur in the same fiscal year.

*Trial Court Trust Fund

Background:

Existing law specifies the number of superior court judges in each of the 58 counties (Gov. Code §§ 69580-69611.) and allocates additional judgeships to the various counties in accordance with uniform standards for factually determining additional judicial need in each county, as updated and approved by the Judicial Council, based on the following criteria: (1) court filings data averaged over a period of three years, (2) workload standards that represent the average amount of time of bench and non-bench work required to resolve each type of case, and (3) a ranking methodology that provides consideration for courts that have the greatest need relative to their current complement of judicial officers. (Gov. Code § 69614(b).)

The Judicial Council is required to report to the Legislature and Governor every even-numbered year on the factually-determined need for new judgeships in each superior court using the uniform criteria for allocation of judgeships described above, as updated and applied to the average of the prior three years’ filings. (Gov. Code § 69614(c).)

In its most recent biennial report, The Need for New Judgeships in the Superior Courts: 2016 Update of Judicial Needs Assessment (November 2016), Judicial Council found that nearly 189 new judicial officers are needed as determined by the methodology described above. This is a decrease of 81 needed judgeships from the Judicial Council’s 2014 assessment. Courts whose assessed judicial need is greater than those courts’ allotment of authorized judicial positions are each eligible for consideration for a new judgeship. Currently, courts must have a need for at least 1.0 FTE judicial officer to become eligible for a new judgeship.

In 2015, the Governor vetoed SB 229 (Roth), a bill that would have appropriated $5 million General Fund (1/2 year funding) to fund 12 new judgeships and accompanying staff. In his veto message (see below), the Governor stated that he intended to work with the Judicial Council to develop a system wide approach to balance the workload and the distribution of judgeships around the state.

The administration’s proposed 2016-17 budget included a trailer bill proposal to reallocate four vacant superior court judgeships (two each from Santa Clara and Alameda county superior courts to Riverside and San Bernardino county superior courts). The reallocation of judgeships, however, was rejected by the Budget Conference Committee and was not adopted as part of the final 2016 Budget Act.

Proposed Law:

This bill would, upon notice to the applicable courts, authorize the reallocation of four vacant judgeships from courts with more judgeships than their assessed need to courts with fewer judgeships than their assessed need. Specific provisions of this bill would:

• Suspend four vacant judgeships in superior courts with more authorized judgeships than their assessed judicial need as determined in accordance with the uniform standards for factually determining additional judicial need in each county pursuant to the Update of Judicial Needs Study and after solicitation of public comments.
• Allocate four judgeships in superior courts with less authorized judgeships than their assessed judicial need as determined in accordance with the uniform standards for factually determining additional judicial need in each county pursuant to the Update of Judicial Needs Study.
• Require the Judicial Council to promptly notify the applicable courts, the Legislature, and the Governor of the suspension of eligible vacant judgeships, as specified.
• Specify when a judgeship is deemed “vacant” and not “vacant” for purposes of this bill.
• Prohibit, for a court in which a vacant judgeship was suspended, the reduction, shifting, or transferring of funding as a result of, or in connection with, the suspension of the vacant judgeship.

Related Legislation: SB 38 (Roth) would appropriate $16 million from the General Fund to the judicial branch to fund the cost of one new appellate justice and accompanying staff and of 10 new superior court judgeships and accompanying staff. SB 38 is pending currently in the Senate Committee on Judiciary.

Prior Legislation:

AB 2341 (Obernolte, 2016) would have reallocated up to five judgeships based on assessed judicial need. AB 2341 was held on the Suspense File of this Committee.

SB 1023 (Committee on Judiciary, 2016) would have appropriated $5 million from the General Fund for the purpose of funding 12 new superior court judgeships, as specified. SB 1023 was held on the Suspense File of this Committee.

SB 229 (Roth, 2015) would have appropriated $5 million from the General Fund for the purpose of funding 12 new superior court judgeships, and accompanying staff, as specified. This bill was vetoed by the Governor with the following message:

I am aware that the need for judges in many courts is acute - Riverside and San Bernardino are two clear examples. However, before funding any new positions, I intend to work with the Judicial Council to develop a more systemwide approach to balance the workload and the distribution of judgeships around the state.

AB 159 (Jones, Ch. 722, Stats. 2007) authorized, upon legislative appropriation in the 2007-08 fiscal year, 50 new superior court judgeships to be allocated pursuant to uniform criteria as updated and approved by the Judicial Council for assessing the need for additional trial court judges. AB 159 permitted, upon subsequent legislative authorization, the conversion of 146 existing subordinate judicial officer (SJO) positions to judgeships in eligible superior courts upon a vacancy of a SJO position. These 50 judgeships were not funded.

SB 56 (Dunn, Ch. 390, Stats. 2006) authorized, upon legislative appropriation in FY 2006-07, 50 additional superior court judgeships to be allocated to various county courts in accordance with uniform standards established by the Judicial Council. These 50 judgeships were funded.

Staff Comments:

Based on information from the Judicial Council, the total ongoing costs of a new judgeship with a full staffing complement (including 8.87 FTE support staff salaries, benefits, and operating costs) are estimated at approximately $1.588 million per judge. By authorizing the reallocation of four vacant judgeships to be transferred from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer judgeships than their assessed judicial need, this bill could result in future General Fund costs to fund judgeships sooner than otherwise may have occurred in the absence of the reallocation, assuming the judgeships would have remained vacant and unfunded for a longer period of time in the court jurisdictions with more authorized judgeships than their assessed judicial need. Moreover, this bill would allow courts for which vacant judgeships are suspended due to a lack of assessed judicial need to nonetheless retain full funding for the suspended judgeships—including the required complement of staff—resulting in additional ongoing future costs to the extent that those judgeships were funded prior to the suspension.

Additionally, an average of $12,500 in one-time costs is estimated per the creation of each judgeship. These costs include facilities and overhead costs such as court room build outs and other accommodation. Actually costs would vary depending on the receiving courts’ ability to accommodate the judgeship, as some courts have existing space to accommodate a new judgeship, while others do not.

Staff notes that, similar to the administration’s 2016-17 budget proposal, the administration has included accompanying trailer bill language as part of the proposed 2017-18 budget to reallocate two judges from Santa Clara County Superior Court to Riverside County Superior Court and two judges from Alameda County Superior Court to San Bernardino County Superior Court. The administration’s proposal is currently pending consideration by the Legislature.

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SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 39 (Author:Roth)

Version: March 20, 2017

Hearing Date: March 28, 2017

Fiscal: Yes

Urgency: No

Consultant: MS

SUBJECT

Suspension and allocation of judgeships

DESCRIPTION

Existing law authorizes 50 additional judges, upon appropriation by the Legislature, to be allocated to various county superior courts, pursuant to uniform criteria approved by the Judicial Council of California. This bill would require that up to four vacant judgeships be allocated from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer authorized judgeships than their assessed judicial need. This bill would also require that the allocation of vacant judgeships be in accordance with a methodology approved by the Judicial Council, as specified.

BACKGROUND

This bill is the latest in a series of bills attempting to increase the number of judgeships in the superior courts that have the most need. This bill would require that up to four vacant judgeships be allocated from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer authorized judgeships than their assessed judicial need. This bill would also require that the allocation of vacant judgeships be in accordance with a methodology approved by the Judicial Council, as specified. This bill is almost identical to last year’s AB 2341 (Obernolte), which was held on suspense in the Senate Appropriations Committee.

Senator Roth is also the author of Senate Bill 38, a bill that would appropriate $16,015,000 from the General Fund to the judicial branch to fund the cost of one new appellate judge and accompanying staff pursuant to Section 69104 of the Government Code, and the cost of 10 new judgeships and accompanying staff pursuant to Section 69614.2 of the Government Code. Last year, this committee was the author of Senate Bill 1023 which aimed to appropriate $5 million from the General Fund for the purpose of funding 12 of the 50 previously authorized superior court judgeships and accompanying staff. This bill was held on suspense in the Senate Appropriations Committee. Prior to that, the Governor vetoed SB 229 (Roth, 2015), a bill that was almost identical to SB 1023 and SB 38. In his veto message, the Governor stated that he intended to work with the Judicial Council to develop a systemwide approach to balance the workload and the distribution of judgeships around the state. As part of the 2016 budget, the Governor proposed a budget trailer bill to reallocate two vacant judgeships each to the counties of Riverside and San Bernardino. This proposal was not part of the final 2016 Budget.

This year’s budget again contains a proposal from the Administration to reallocate judges. In his 2017 budget, the Governor proposes a total funding of $3.6 billion for the Judicial Branch. Additionally, the Administration proposes to reallocate four vacant superior court judgeships. This change “will shift judgeships to the areas of the state where workload is highest without increasing the overall number of judges.” (Governor’s Budget Summary 2017-18, Judicial Branch, p. 14.)

According to the Judicial Council’s November 2016 report, “a critical shortage of judges relative to the workload needs in California’s trial courts” remains, with nearly 189 additional judges needed. (Jud. Council of Cal., Rep. on the Need for New Judgeships in the Superior Courts: 2016 Update of the Judicial Needs Assessment (Nov. 2016), p. 2.)

CHANGES TO EXISTING LAW

Existing law provides that the Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court. (Cal. Const., art. VI, Sec. 4.)

Existing law specifies the number of superior court judges in each of the 58 counties. (Gov. Code Secs. 69580-69611.)

Existing law establishes that in the County of:

• Alameda there are 69 superior court judges. (Gov. Code Sec. 69580.)
• Santa Clara there are 79 superior court judges. (Gov. Code Sec. 69600.)
• San Bernardino there are 63 superior court judges. (Gov. Code Sec. 69594.)

Existing law authorizes 50 additional superior court judges to be allocated to the various superior courts pursuant to uniform criteria adopted by the Judicial Council, upon appropriation in the 2007-08 fiscal year. (Gov. Code Sec. 69614.2)

Existing law requires that the uniform criteria for determining additional judicial need take into account the following: (1) court filings data averaged over a three-year period; (2) workload standards that represent the average amount of time of bench and non-bench work required to resolve each case type; and (3) a ranking methodology that provides consideration for courts that have the greatest need relative to their current complement of judicial officers. (Gov. Code Sec. 69614)

Existing law specifies the composition and duties of the Judicial Council (Council), requires judges to report to the Council as the Chief Justice directs concerning the condition of judicial business in their courts, requires judges to cooperate with the Council and hold court as assigned, and specifies that the Chief Justice:

• shall seek to expedite judicial business and to equalize the work of judges;
• may provide for the assignment of any judge to another court but only with the judge’s consent if the court is of lower jurisdiction; and
• may assign a retired judge who consents to any court. (Cal. Const., art. VI, Sec. 6.)

Existing law specifies the process for electing superior court Judges, and for their appointment by the Governor. (Cal. Const., art. VI, Sec. 16).

This bill would state that it is the intent of the Legislature that this act shall not be construed to limit the authority of:

• the Legislature to create and fund new judgeships pursuant to Section 4 of Article VI of the California Constitution;
• the Governor to appoint a person to fill a vacancy pursuant to subdivision (c) of Section 16 of Article VI of the California Constitution; or
• the Chief Justice of California to assign judges pursuant to subdivision (e) of Section 6 of Article VI of the California Constitution.

This bill would require that up to four vacant judgeships be allocated from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer authorized judgeships than their assessed judicial need to provide for a more equitable distribution of judgeships and upon notice to the applicable courts.

This bill would require that the allocation of vacant judgeships be in accordance with a methodology approved by the Judicial Council after solicitation of public comments, and that the determination of a superior court’s assessed judicial need be in accordance with the uniform standards for factually determining additional judicial need in each county, as updated and approved by the Judicial Council, pursuant to the Update of Judicial Needs Study, based on the criteria set forth in subdivision (b) of Section 69614.

This bill would provide that if a judgeship in a superior court becomes vacant, the Judicial Council shall determine whether the judgeship is eligible for allocation to another superior court under the methodology, standards, and criteria described above, and if the judgeship is eligible for allocation to another superior court, the Judicial Council must promptly notify the applicable courts, the Legislature, and the Governor that the judgeship vacated in one court shall be allocated to another court.

This bill would specify that a judgeship becomes “vacant” when an incumbent judge relinquishes the office through resignation, retirement, death, removal, or confirmation to an appellate court judgeship during either of the following:

• at any time before the deadline to file a declaration of intention to become a candidate for a judicial office, as specified; or
• after the deadline to file a declaration of intention to become a candidate for a judicial office if no candidate submits qualifying nomination papers by the deadline.

This bill would provide that a judgeship shall not become “vacant” when an incumbent judge relinquishes the office as a result of being defeated in an election for that office.

COMMENT

1. Stated need for this bill

According to the author:

California is neglecting its poorest and most vulnerable citizens by failing to address an ongoing judge shortage afflicting the state. As we enter the tenth year since AB 159 authorized 50 judges to meet the needs of California, these positions remain unfunded and this critical need has only grown. Since these judges were authorized in 2007, the state has grown by 3 million people, and the Judicial Council reports that California now requires 188.5 judges to provide an adequate judiciary. Particularly poignant in this ongoing crisis is the stories of San Bernardino County and Riverside County, which with a combined need of 95 judges account for a full half of the entire statewide need. Inland Southern California was plagued by court closures just when statewide population shifts were greatly increasing the region’s demand for judicial resources. For years now, inaction by the state has required some of our citizens to take an entire day off work and drive hours across the state in order to access their closest court house. The underdeveloped public transportation systems in rural California only serve to make it harder for poorer and disabled Californians to access core services and justice, and the impacted nature of the remaining court houses is especially harmful to those with time sensitive matters like family law proceedings. When I authored SB 229 in 2016 to fund just 10 of the 50 authorized judges, the Governor’s veto message stated that before funding new positions, the state needs “a more systemwide approach to balance the workload and the distribution of judges around the state.” SB 39 is necessary to establish a more equitable statewide judicial system and help ensure future funding for the Judiciary. This is a critical first step to fully staffing the judiciary and it would make a strong statement that California is serious about providing a fair level of access and services to all Californians throughout the state.

In support, Riverside County Board of Supervisor’s writes that SB 39 seeks to correct the imbalance in the current distribution of judicial resources around the state, which would likely improve their constituents’ access to justice. They go on to explain that this is because “Riverside County, regrettably, stands above all others in terms of overall need – the superior court’s workload warrants an additional 46.8 judicial officers (a figure that is 62 percent greater than the level of judicial positions presently authorized). Steep population growth in Riverside County over the last several decades has greatly outpaced the trial court’s ability to keep up with the attendant demand on judicial resources.”

1. Superior court judge shortage throughout California

Under existing law, the Judicial Council is required to report to the Legislature on or before November 1st of every even-numbered year on the need for new judgeships in each superior court. (Gov. Code Sec. 69614.) The most recent report, The Need for New Judgeships in the Superior Courts: 206 Update of the Judicial Needs Assessment, found that a critical need for new judgeships remains and that nearly 189 new judgeships are needed to meet the workload-based need in the trial courts. (Jud. Council of Cal., Rep. on the Need for New Judgeships in the Superior Courts: 2016 Update of the Judicial Needs Assessment (Nov. 2016), p. 2.) The report goes on to explain that:

Consistent with reports submitted in previous years, the 2016 Judicial Needs Assessment shows that there is a critical shortage of judges relative to the workload needs in California’s trial courts. [The report] summarizes the statewide judicial need compared to available resources based on a three year average of filings from fiscal years 2012-2013 through 2014-2015, showing that 2,048.6 [full-time equivalent judicial positions (FTEs)] judicial officers are needed statewide, compared to 1,960.1 FTE authorized and funded positions. … While Assembly Bill 159 (Stats. 2007, ch. 722) authorized 50 new judgeships for the superior courts, those positions have neither been funded nor filled. (Id.)

Staff notes that this year’s assessment shows the overall statewide need for judicial officers has declined by 122.7 FTEs since the 2014 Judicial Needs Assessment. The assessment states this is due to overall lower filing counts occurring in recent years. (Id.) This statewide decrease has not changed the severe need faced in particular counties. For example, Riverside County and San Bernardino County together account for half of the entire statewide need, with Riverside County needing 46.8 FTEs and San Bernardino needing 48.1 FTEs. The Judicial Needs Assessment shows how disproportionate the need of this Inland Southern California region is from the rest of the state by looking to the next three largest deficits in terms of FTEs. They are Kern County at 13.8, Fresno County at 12.8, and Sacramento County at 10.4.

In response to the continued need for additional judgeships, and faced with the reality that the Legislature’s recent attempts to fund authorized judgeships have failed, this bill seeks to allow the Judicial Council to move up to four vacant judgeships from superior courts with more authorized judgeships than their assessed judicial need to superior courts with fewer authorized judgeships than their assessed judicial need.

1. The Legislature has the Constitutional authority to prescribe the number of judges in each superior court

The California Constitution vests the Legislature with the duty to “prescribe the number of judges and provide for the officers and employees of each superior court.” (Cal. Const., art. VI, Sec. 4.) In opposition, the Alliance of California Judges writes “[t]he allocation of judgeships is best decided after vigorous and public debate by our elected representatives, not according to some obscure calculation performed by unelected and unaccountable bodies using a formula that can be tweaked at will.” They further assert that this bill “violates Article VI, section 4 of the California Constitution which gives

to the Legislature – not the Judicial Council or the Administrative Office of the Courts – the authority to decide how many judges should sit in each county.”

The Legislature has set the number of superior court judges in each of the 58 counties. However, the Legislature has also authorized new superior court judgeships without specifying in which particular counties those judges should be allocated. The Legislature has previously given the Judicial Council a role in determining where new judicial positions would be located. Indeed, current law authorizes 50 new superior court judgeships, upon funding, and authorizes the allocation of the judgeships to particular counties to be determined pursuant to uniform criteria as updated and approved by the Judicial Council. Existing law requires that the uniform criteria for determining additional judicial need take into account the following: (1) court filings data averaged over a three-year period; (2) workload standards that represent the average amount of time of bench and non-bench work required to resolve each case type; and (3) a ranking methodology that provides consideration for courts that have the greatest need relative to their current complement of judicial officers. (Gov. Code Secs. 69614, 69614.2.)

The Committee has not been provided with any examples where the Legislature has given the Judicial Council the authority to move judgeships, whether vacant or filled, from one county to another. The authority given to the Judicial Council to make determinations regarding locations of judgeships has only been given when new judgeships were created and funded.

If the Committee is inclined to allow up to four vacant judgeships to be moved from one superior court to another, the Committee may wish to amend this bill to make clear which vacant judgeships should be taken from one county and given to another. The Committee may also wish to seek an amendment to make clear that the courts receiving vacant judgeships also receive funding to adequately staff new judges.

Support: Riverside County Board of Supervisors

Opposition: Alliance of California Judges

HISTORY

Source: Author

Related Pending Legislation:

AB 414 (Medina) is almost identical to this bill. AB 414 is currently pending in the Assembly Judiciary Committee. AB 414 differs from SB 39 in that it would allow the Judicial Council to decide whether a judgeship should be suspended after they notify the court with the vacant judgeship, the Legislature, and the Governor, and provide time and opportunity for public comment. SB 39 would require proposed suspensions be approved by the Governor in compliance with subdivision (c) of Section 16 of Article VI of the California Constitution.

SB 38 (Roth, 2016) would appropriate $14,813,000 from the General Fund to the judicial branch to fund the cost of 10 new superior court judgeships and accompanying staff. As well as increase the number of appellate court justices from seven to eight in Division 2 of the Court of Appeal for the Fourth Appellate District, with an appropriation of $1,202,000 for the funding of this appellate judge and accompanying staff.

Prior Legislation:

SB 1023 (Committee on Judiciary, 2016) See Background.

AB 2341 (Obernolte, 2016) See Background.

AB 1519 (Committee on Judiciary, Ch. 416, Stats. 2015), among other things, authorized Judicial Council to convert 10 subordinate judicial officer positions, as specified.

SB 229 (Roth, 2015) See Background.

AB 1313 (Donnelly, 2014) would have required allocation of additional judges to courts with the greatest disparity between their current judicial allocation and their assessed judicial need. This bill failed to pass through the Assembly Judiciary Committee.

AB 159 (Jones, Ch. 722, Stats. 2007) See Background.

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