The Transformation of the State Courts
The Association is moving to participate more fully in the Judicial Council rule-making process
By Rex S. Heinke
Rex S. Heinke is president of the Association.
This President's Page was originally published in the April 2001 issue of Los Angeles Lawyer.
The California Judicial Council is clearly assuming a larger role in the administration and operation of our state courts. In no small measure this is due to a shift in the funding of those courts. Until recently, our state courts were funded largely by county governments; however, the bulk of funding now comes from the state government (although counties still own and control the courthouses themselves—at least for now). With this major shift in funding has come a major shift in control—away from county governments (which often delegated much of their authority to local judges) to the state government (which has delegated much of its authority to the Judicial Council).
Another important factor contributing to the Judicial Council's increasing influence is its activist leadership. Led by Chief Justice Ronald M. George, who has taken a very prominent role in improving court administration, the Judicial Council has actively used its rule-making authority to improve the state judicial system, even though this has taken power away from local courts.
There are many examples of this shift in authority from the local to the state level—some major, others seemingly minor. Consider, for example, recent Judicial Council rules
• Requiring, in some circumstances, that courts hold open meetings when making administrative decisions.
• Prohibiting "local local" rules.
• Prohibiting courts from requiring blue-backed pleadings.
(This trend was placed in its historical context and discussed in greater detail in an article by Superior Court Judge Arnold Gold that appeared last September in Los Angeles Lawyer.1)
Whether you regard some or all of these changes as major or minor or good or bad, the reality is that the Judicial Council is setting the agenda on what changes should be made and when. Local courts no longer can control the rules that govern what happens in their courtrooms. As was the case with the unification of state trial courts, some support this development, while others do not. But, as was also the case with unification, the train has already left the station: The debate over whether the Judicial Council should exercise its power is over. For better or worse, the shift in power from local courts to the Judicial Council is a reality that we all must understand and work with.
Making the Association Heard
Accordingly, the Association has taken a number of steps to make sure that your voice is heard at the Judicial Council. One concern that we have had is that the period that the Judicial Council establishes for response to its proposals is often too short to allow for meaningful participation by our members. In some instances, this is because the legislature has mandated that the Judicial Council respond by a certain date. In other situations, it is due to the time it takes to distribute appropriate materials by mail. We have therefore proposed to William Vickery, the energetic director of the Administrative Office of the Courts, which supports the Judicial Council, that proposed rules be distributed by e-mail. He and his staff are working on an e-mail distribution list that would provide notice that new proposed rules are posted on the Judicial Council's Web site. To view current proposed rule changes and to comment on them, go to www.courtinfo.ca.gov/invitationstocomment/.
Other changes being considered include:
• Making the agendas and minutes of the Judicial Council's advisory committees available to the public (hopefully, on the Judicial Council's Web site).
• Taking public testimony on proposed rules before they are adopted.
• Adopting rules on an interim basis so that they can be revised quickly after some real-world experience with them.
While these are important improvements to the Judicial Council's rule-making process, they are reactive. As an Association, we also want to be proactive.
Fortunately, the Judicial Council is very receptive to input from judges, lawyers, and the public about ways that it can help improve the state judicial system. In many instances, Judicial Council action is an efficient alternative to passing new state legislation. Interested members can find an explanation of how the Judicial Council's rule-making process works on its site at www.courtinfo.ca.gov/rules/.
The State Courts Coordinating Committee
To coordinate our responses to proposed new rules and to serve as a clearinghouse for our own proposals, the Association has created the State Courts Coordinating Committee. It is chaired by former Association President Pat Kelly (firstname.lastname@example.org) and comprised of representatives from all our committees and sections that are interested in the state courts. We are also in the process of creating a similar committee to coordinate our responses and ideas on federal rules. It will be chaired by former Chief Assistant U.S. Attorney Richard Drooyan (email@example.com). Please feel free to contact either of these chairs or me directly if you have any comments on proposed rule changes or new rules that should be adopted.
Another way the Association can deepen its working relation with the Judicial Council is to have our members become active in its advisory committees, where much of the work of the council is done. We want to participate in the work of the advisory committees before proposals have become too far advanced for us to influence them. The list of advisory committees includes appellate law, civil and small claims cases, criminal law, family and juvenile law, and probate and mental health law.
A full list of these committees and their members can be found on the Internet at www.courtinfo.ca.gov/courtadmin/jc/
advisorycommittees.htm. The Association will be nominating committee members in the near future, so if you are interested in serving on one of them, please let me know (firstname.lastname@example.org). Terms of service will start on November 1, 2001, and run for three years. They require attendance at four to six committee meetings a year as well as subcommittee meetings.
Two lawyers from Los Angeles, John Collins (email@example.com) and Rex Heeseman (firstname.lastname@example.org), currently serve on the Judicial Council. They are two of the Council's four attorney members and are appointed by the California State Bar. They are active in the Association and quite knowledgeable about the state court system. Three judges from Los Angeles also serve on the Judicial Council: Court of Appeal Justice Richard D. Aldrich and Superior Court Judges Aviva K. Bobb and Ana Maria Luna. When you review the membership of the advisory committees, you will find that several other judges and lawyers from Los Angeles serve on them. I am sure all of them would also welcome any thoughts you have on proposed rules.
The Association's efforts to work with the Judicial Council are another example of the importance of your membership in the Association. Acting together, as an association, we can make sure that our voices are heard by the Judicial Council and other government bodies that affect the practice of law. So the next time that you think to yourself "that's a stupid rule," or "that rule conflicts with another rule," or "that rule is so unclear I have no idea what it means," remember you can do something about it. Let us know what the problem is—or better yet, come and work on one of our committees or sections that deals with the problem that concerns you. It really does not take anything more than that to get involved.
1Arnold H. Gold, California Rules!, Los Angeles Lawyer, Sept. 2000, at 36.