Judges Win Court Turf War : They Gain Control of Clerks, Vow to Improve System

The way things get done at your local county courthouse just got shaken up--again.

This latest bit of business, the newest in a unprecedented series of changes that have swept the state’s Superior Courts in recent months, is the product of what was once characterized as a “turf war.”

The Superior Court judges have been unanimously declared the winners. The elected county clerks are the clear losers. The state Constitution was the battleground.

For the moment, the winners walked away with the power to hire and fire the clerks who work in the courts with them.

The real dynamite, however, is that, sparked by a case that started in San Diego, Superior Court judges in various counties have been given the green light by the state Supreme Court to go for control of anything in a county clerk’s office that’s court-related.

They Want It All

And at least in San Diego, they say they want it all.

If they get it, the local judges say, they promise a courthouse where you’re greeted by pleasant, well-equipped clerks who genuinely care about serving the public.

“The person on the street should expect to be greeted by a reasonably content, pleasant, well-equipped, albeit overworked, person and get their business done and get out of here, not stand around waiting and suffering through the trials and tribulations they might otherwise have to put up with,” Judge Wayne L. Peterson said.

“I’m satisfied that I speak for the entire Superior Court when I say that’s the environment we want to create with the expansion of our responsibility for the courtroom clerks and attendant staff,” Peterson said.

County Clerk Robert Zumwalt takes exception to the implied criticism. “We’re getting the job done,” Zumwalt said. “That’s the main thing. We’re getting the job done with limited resources. I’ve never had to tell a judge that judge couldn’t have a trial because there wasn’t a clerk. That’s never happened.”

The shift in authority over the clerks is in keeping with the wave of change rolling through the Superior Courts.

“You just stop, stand back, take a look at it, we’re going through--I’m using this word by design--an exciting period of time for the judiciary in California,” Peterson said.

Historic Changes

“More has happened in the last 18 months to change the face of the judiciary, not only its size but its composition, its management style and its authority, than in the history of California,” he said. “I don’t think there’s been any other time when these many dynamic forces have been at play in one moment than now. It’s going to change the way the judiciary does business for the next 50 to 100 years.”

The courtroom clerks case appears to be the most important of those developments to come from a court ruling, said the winning lawyer in the case, Kenneth Andreen of Fresno, a former justice on the 5th District Court of Appeal.

“It’s a gigantic opinion in terms of administration of justice,” Andreen said. “I can’t think of a more important opinion.”

The other changes are due to action from the executive and legislative branches--as well as on the streets:

- Last September, Gov. George Deukmejian signed into law two bills implementing a plan calling on the state to finance county trial courts. In the last half of the 1988-89 fiscal year, the state was to provide counties $206 million. By the 1997-98 fiscal year, the annual block grant will grow to $601.5 million, according to legislative estimates.

The idea that the state should fund local courts was first broached in the 1950s.

- Deukmejian has appointed 362 of the state’s 724 Superior Court judges, or exactly half, since he took office in 1983, according to statistics from the governor’s press office in Sacramento and the Administrative Office of the Courts in San Francisco.

In San Diego, Deukmejian has appointed 42 of 62 judges. Nine more are due by the end of the year, said Judge Michael I. Greer, the court’s presiding judge.

- Criminal filings are on the rise. In San Diego, for instance, felony filings rose 28% in 1988 from 1987, to 11,988, Greer said at a recent press conference. Superior Courts handle felonies as well as civil cases worth more than $25,000.

- A 1986 legislative initiative popularly called “fast track” has changed the way civil cases move toward trial. Lawyers and clients no longer control the pace of litigation. Instead, judges set deadlines and hold contempt hearings for attorneys who fail to keep up.

The program got under way in San Diego in 1987. It spread to eight of the state’s other largest counties in 1988, and moves to all the state’s counties in 1991.

Under the old system, it used to take up to five years to close a case. In San Diego’s pilot program, 90% of civil cases filed after 1987 are concluding in two years, according to the court’s statistics.

- “Fast track” cases in some counties are assigned to one judge from start to finish, the same way cases are handled in federal court. The practice in state courts had been to move a case through different judges as it proceeded toward trial. In San Diego County, the courts are moving toward the new system.

- The increased size, the faster pace, increasing automation and other changes at the courts have created a demand for professional court managers, a “profession that has emerged in the last decade,” said the San Diego court’s new executive officer, Kenneth Martone.

Martone took over the job just two weeks ago. He beat out 62 other candidates, Greer’s office said in a statement.

Court management was the most important factor behind the case of the courtroom clerks.

A courtroom clerk prepares the informal court orders called “minutes,” which summarize what happens in court. Among other tasks, the clerk can also handle a judge’s calendar, call the roll of jurors and swear witnesses.

In the state’s Municipal Courts and appellate courts, as well as in federal courts, the courtroom clerks work for the judges. In the Superior Courts, by historical accident, they worked for the county clerk.

In May, 1987, the San Diego judges adopted a rule transferring 121 courtroom clerks from Zumwalt to their executive officer, who was then William Pierce.

Under Zumwalt, the clerks were inadequately trained and didn’t have the equipment they needed for the job, Greer said.

One of the most glaring examples, Greer said, was that the clerks didn’t--and still don’t-- have a computer or silent typewriter for use in the courtrooms. That meant they had to work when court was not in session, usually through lunch or overtime, to type their “minutes.”

The real problem, though, was the “dual line of authority,” Greer said. “It created an impossible situation, a pull and a tug, between the county clerk who would want the clerk to do something and the judge who would want the clerk to do something else.”

The judges’ rule was passed under a 1971 state law that was amended five years later to permit them to pass exactly that kind of rule. Zumwalt, however, said the law violated the state Constitution.

A section of the Constitution says the county clerk is the clerk of the Superior Court by virtue of being county clerk. As such, the clerk has certain core duties that cannot be transferred, including control of the courtroom clerks, Zumwalt argued.

In February, 1988, the 4th District Court of Appeal in San Diego said Zumwalt was wrong. It also called the dispute a “turf war.”

The next February, Greer postponed civil trials for what turned out to be three weeks, laying part of the blame for the moratorium on the clerk’s office.

Greer charged that Zumwalt failed to keep him up-to-date on the growing number of criminal cases facing dismissal unless trials began immediately. Zumwalt argued that the problem was created by the county’s swelling criminal caseload and a shortage of judges.

The crisis ended when Deukmejian appointed seven men to the bench on March 6.

Zumwalt, meanwhile, appealed his 4th District loss to the state Supreme Court. Last Monday it also ruled in favor of the judges.

The Constitutional section Zumwalt cited requires a county clerk to do what the Legislature says, Justice David Eagleson said. But simply being clerk creates no right to perform duties the Legislature has permitted judges to transfer to a court executive officer, Eagleson said for a court unanimous on those two points.

The decision validated rules adopted by the Superior Courts in at least eight other counties around the state, said Andreen, the winning lawyer. A Riverside County rule is still before the court.

“I think other counties may follow suit--but they may not,” Andreen said. “A court is not going to undertake the administrative burden of supervising court clerks if the job is being done adequately by the county clerk.”

The ruling does not affect counties where the county clerk and executive office have been combined. These include Los Angeles and San Francisco.

The decision left Zumwalt, minus the courtroom clerks, with the court’s business office, the court records, the exhibit room and such non-court duties as marriage licenses and registering fictitious business names.

“I’m not surprised is what I’m going to say,” Zumwalt said. “It’s very difficult to get judges to rule against judges.”

The surprise is that the judges didn’t stop. In a footnote, Eagleson said that to the extent a 1986 Court of Appeal opinion suggested some court-related duties must be left to the county clerk to “avoid destruction of the office,” it is “disapproved.”

Justice Stanley Mosk disagreed. The Legislature cannot “authorize a total reassignment” of the clerk’s duties, he said.

Only Justice Allen Broussard, however, joined that part of Mosk’s dissent.

Given that 5-2 go-ahead, Greer said he “wants to bring over more than 121” because he wants “to be able to manage the things that are being mismanaged that are not covered.”

“Because we feel the responsibility for managing the system, I’m going to suggest that we consider legislation” to bring under the judges’ umbrella the clerks in the business and records offices as well as those in the exhibit room, Greer said. He said last week that he had no timetable for doing so.

In the meantime, the judges will have to confront some very uncertain clerks. A specific state law says that clerks in San Diego County who transfer to the judges’ side of the aisle not only lose the civil service benefits they had under Zumwalt, they serve at the judges’ pleasure.

“What’s so hard for us to understand is that I joined the county government for security reasons and I’m losing something I cherish dearly,” said Carol Bozlee, one of the 121.

“Morale here is at an all-time low,” she said.

Another law gives the transferring clerks the opportunity to engage in collective bargaining, said Tony Albers, a chief deputy at the San Diego County counsel’s office.

“To be quite blunt with you, I assume they’re going to obtain union representation,” Greer said.

Before the judges and clerks enter their brave new world, the irony is that they didn’t have to get there this way, Peterson said.

“This matter has turned into one with statewide if not countrywide implications,” he said. “But if we could have worked out a compromise, with a merging of the clerk’s office and the courts (as in Los Angeles and San Francisco), the recalcitrance of the clerk would not have worked to the disadvantage of clerks throughout the state. I believe this one will.”