The State Judiciary's Headlong Retreat From Independence

Charles L. Lindner is past president of the Los Angeles Criminal Bar Assn

For the past three weeks, Los Angeles' trial courts have been hit with the worst labor unrest since 1978, when deputy district attorneys and public defenders went on strike. The current job action is led by the county's court clerks and bailiffs, who have targeted individual courthouses for "sick-outs"--all sheriff's deputies and clerks assigned to the courthouse simultaneously become "ill." The impact has been dramatic. Last Thursday, the strikers created gridlock at the Criminal Courts Building, costing the county several hundred-thousand dollars.

As every student learns, the legislative, executive and judicial branches of our government are co-equal. For much of the last decade, however, the judicial branch in California has failed to protect itself and its employees from damage inflicted by the Legislature, the governor and local county boards of supervisors. The clerks' job action is a visible sign of this weakness.

The founding fathers intentionally created tensions among government's three branches. But when one branch decides to usurp the province of another, a constitutional confrontation occurs, and when such confrontations occur, the framework of government and society is shaken.

By its nature, the judiciary is the weakest of the three co-equal branches. It depends on the legislative branch for funding and the executive branch to carry out its orders.

Since 1991, the governor and legislative leaders have promised to appropriate enough money to restore trial-court funding to a level at which the courts can function effectively. Each year, the Legislature has reneged on its promise, eventually appropriating only a fraction of its professed commitment to the courts.

The L.A. County Board of Supervisors has complained that the courts are state institutions and thus should be funded by the state. Adding insult to injury, the governor and the Legislature have continually siphoned off billions of dollars in local property-tax revenues, which would otherwise have helped fund courts, to balance the state budget at a time of economic recession.

In response, the judicial branch has done nothing, conduct in sharp contrast to the first judicial-funding confrontation reported in California case books. Soon after California achieved statehood in 1850, the sole judge in San Francisco applied to its Board of Supervisors for funds to buy a desk. The board refused. The judge then ordered the county controller to issue funds for a desk without legislative authorization by threatening to hold the county controller in contempt.

The case rapidly arrived at the state's new Supreme Court. The high court held that the legislative branch could not act in a manner that effectively restrained the judiciary from carrying out its constitutional obligations. A judge could not function without a desk, and a branch cannot be co-equal if it can be atrophied by cutting off its funding.

The judicial system continued to hold its own up through the 1970s, when the state Supreme Court, headed by Roger J. Traynor, enjoyed "a golden age." The court was widely considered to be the best state tribunal in the nation; its decisions were cited regularly not only by other state supreme courts, but also by high courts in England, Australia and Canada. But after Traynor and his fellow justices retired, the judiciary failed to successfully defend itself from attacks by the other two branches of government, and those attacks came chiefly in the form of inadequate funding.

Chief Justices Donald R. Wright, Rose Elizabeth Bird and Malcolm M. Lucas dealt ineffectively with the Legislature. The culmination of their ineptness was a major tactical error committed by Lucas in 1991. That year, the Supreme Court upheld term limits for both state senators and members of the Assembly, which were mandated by Proposition 140.

The question of the constitutionality of term limits was wholly within the province of the judicial branch to decide. But in his opinion, Lucas could not resist sticking it to the Legislature. As California Journal noted: "In language that did not seem necessary to the decision, the chief justice wrote that the initiative [Proposition 140] was justified by the dangers of 'an entrenched, dynastic legislative bureaucracy,' and that it was 'speculative' to claim that a 38% cut in the Legislature's operating budget would hurt the legislative process."

After helplessly watching the court end their political careers, enraged legislators slashed the judicial branch's next budget by--38%. Although the court's budget ultimately was cut by only 2.5%, it was clear the Legislature got the court's attention. Having gratuitously thrown the legal equivalent of a low blow, the California judiciary, especially the high court, had to choose whether to run or fight, i.e., acquiesce to outrageous legislative retaliation seemingly intent on destroying judicial independence or engage in a constitutional confrontation. Regrettably, for judicial-branch employees and its own integrity, the state Supreme Court chose to run away.

Last year, the judiciary was in full retreat, as evidenced by the Supreme Court's decision in Mendocino County vs. Mendocino Superior Court. A 1993 state law gave financially strapped counties the right to shut down their courts for "unpaid furlough days" as a budget-cutting measure. Soon after the bill became law, the Mendocino County Board of Supervisors struck a deal with county employees for six such days a year. But the county's Superior Court judges refused to cooperate, saying the legislative branch couldn't tell courts when to close.

The 1st District Court of Appeal in San Francisco struck down the board's action as legislative encroachment on the judiciary's inherent powers. But ducking the constitutional confrontation, the state Supreme Court reversed the decision. In Justice Ronald M. George's last opinion before moving up to chief justice, he wrote that that the law letting county supervisors shut down courts for unpaid "furlough days" was not an encroachment on judicial independence.

This was the wrong holding at the wrong time. As a result of the Mendocino Superior Court decision, there appears to be no legal barrier to a board of supervisors ordering county courts to issue unpaid staff furloughs for up to 200 days a year. Under the Mendocino ruling, a majority vote by a county board of supervisors could all but shut down the judicial function.

The judges cannot protect their staff because they lack the will to defend the judiciary's own institutional integrity. The court staff has not struck because they are ignorant of the budget process, but because they understand it. The judicial golden age had turned to lead.

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