M ichael Yuen , P residing J udge K atherine F einstein , C hristopher K earney, K elly D ermody
Emergency Compromise Temporarily R escues
SAN FRANCISCO SUPERIOR COURT
Leslie A. Gordon
I
n an emergency compromise unanimously
approved by the Judicial Council at the end
of the summer, the Administrative Office of
the Courts (AOC) rescued the nearly broke
Superior Court of San Francisco County
with $2.5 million from an emergency fund.
The court also accepted $650,000 in AOC
grant money to finance two complex litigation departments. In exchange, Presiding
Judge Katherine Feinstein and Court Executive Officer
12 WINTER 2011
(CEO) Michael Yuen reduced planned staff layoffs from
177 to 75 and halted the closure of eleven civil courtrooms. The deal requires repayment within five years and
a court report to the Judicial Council by next August on
how the money was used.
Before this deal, San Francisco’s superior court was, according to Presiding Judge Feinstein, “teetering on the
brink of financial collapse” because of state budget cuts.
Although it represents less than 3 percent of California’s
overall budget, the judicial branch’s funds were slashed
by $350 million in the 2011–2012 budget, a reduction
of more than 30 percent. Because the Constitution guarantees a right to a speedy trial for criminal defendants,
San Francisco’s civil court has been particularly hard hit.
Uncontested divorces, for example, are now taking more
than a year.
As a result of the AOC deal, San Francisco’s superior
court will offer fewer services, but the reduction is significantly less than originally predicted. “That is a real victory,” says The Bar Association of San Francisco (BASF)
President-Elect Kelly Dermody, who helped broker the
deal. “It’s a credit to the senior leadership at the AOC.
It took very significant time to make this happen in an
expedited manner. Afterwards, I spoke to members of the
Judicial Council and there was no ‘us versus them.’ There
was simply a collective concern that San Francisco citizens
not suffer unduly. I’m grateful we have such outstanding
public servants and leaders.”
The biggest obstacle to permanent resolution to the court
funding crisis is the overall economy, according to BASF Secretary Stephanie Skaff, who served
as a liaison to the court’s CEO
and presiding judge during the
deal. “There are so many funding needs in our state that are
going unmet: health and human
services, K–12 education, state
parks, the UC system. So when
we seek general funds from the
legislature, we are standing in a
very long line. Our challenge is
to articulate the need to the legislature in a compelling way.”
public justice system, it becomes much more difficult to
do business in our state.” And at the primary level, courts
are about individual rights. “It’s basic civics, but it seems
to have gotten lost: the judicial branch is a coequal branch
of government and our courts provide the essential checks
and balances that protect our most basic rights as citizens.
We must guarantee the funding to allow our courts to
perform that essential function.” In his inaugural speech,
the State Bar of California President Jon Streeter noted
that “living year-to-year on a hand-to-mouth existence
may be the norm for executive branch agencies, but it is
no way to run the largest system of courts in the world.”
SAN FRANCISCO AS CANARY IN A
COAL MINE
San Francisco’s funding problems are mirroring the crisis in the state’s fifty-seven other counties. Sacramento’s
superior court, for example, cut so much staff that the
number of family court service windows went from ten to
two, requiring citizens to wait as long as six hours for assistance, according to The
New York Times.
“San Francisco is just a little bit out in front, but this
is a statewide problem,”
Dermody says. “There’s
been a three-year trend
of the court budget being
slashed. Many counties
will have these issues. San
Francisco is a bit of a canary in a coal mine.”
This summer’s debate in
San Francisco raises larger, troubling issues about
the future of the third
branch of California’s
government. When staff
layoffs and courtroom closures prohibit fundamental services from being
provided to Californians,
That shouldn’t be too hard because, Skaff adds, the courts are
about real people who need access to justice for basic life needs.
“Our courts are also about our
business environment. Without
the certainty and stability of a
P riya S anger
our very democracy is threatened, says BASF President
Priya Sanger. The judiciary, she explains, is not just another interest group clamoring for money from the legislature. When the executive and legislative branches
underfund the judiciary so much that it weakens—bordering on dismantling—the third branch, it represents
an unconstitutional violation of the separation of powers,
she says. “No branch of government is more critical to or
more frequently accessed by the public than our courts.”
SUPERIOR COURT HISTORY
Created by a 1926 amendment to the California Constitution, the Judicial Council is a twenty-one-member
policy-making group comprising judges, lawmakers, attorneys, and nonvoting members. It is responsible for improving statewide administration of justice in California’s
courts, the largest judiciary system in the nation. The
AOC is the Judicial Council’s staff agency.
In the late 1970s, the California courts eliminated its
so-called justice courts, replacing them with municipal
courts, making the system less ad hoc and more organized, according to superior court historian James Stevens, a retired judge from Yolo County. “That was a positive step,” he says.
Then, in 1998, California’s Constitution was amended to consolidate municipal courts into superior courts, resulting in just one
court of record for every county.
Historically, the superior courts
had reported to each county and
received funding—with the exception of judges’ salaries—from
county boards of supervisors.
“Shifting funding from the counties to the state was a good development,” Stevens says. “The AOC
is better than the counties by a
long shot.”
Later, in 2005, then Chief Justice
Ronald George led an effort to
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standardize court fees across the state as a way to consolidate and strengthen judicial branch policies and operations. The current crisis represents, at least in part, a
conflict between independent trial courts who would like
to establish and collect their own fees and George’s vision of a centralized judicial bureaucracy. According to
a press release from Presiding Judge Feinstein, as part of
the funding deal reached this summer, the AOC agreed to
lobby the legislature for certain fees that can be charged
and kept locally as a way to offset state budget cuts.
OFFICERS OF THE COURT, THE LEGAL
COMMUNITY MOBILIZE
In response to the San Francisco superior court’s financial crisis, the city’s legal community quickly voiced its
concerns. Eight bar associations, including BASF and
the Minority Bar Coalition, which comprises more than
twenty affinity bar associations, wrote to the Judicial
Council. Letters were also sent by twenty-nine former
BASF presidents and sixty-two managing partners of San
Francisco law firms. The issue “has been a wildfire spreading through the legal community,” Dermody says. “Our
members are shocked, horrified, deeply concerned, and
worried for their clients. There’s not a member of our
community without an opinion.
We’ve assembled a broad collection of people to help the bar pursue good, viable strategies to help
solve this problem.”
S tephanie S kaff
Because its core mission is access
to justice, BASF is uniquely situated to help solve the crisis, according to Skaff. “Our members
are a diverse group representing
the broad spectrum of lawyers
in our state,” she says. “They are
plaintiffs’ lawyers and defense lawyers. They are large law firm partners and small solo practitioners.
They represent indigent clients
and large corporate entities. And,
believe it or not, our members are
diverse politically. The solutions
we seek will reflect the input of a large and diverse group
of practitioners.”
Specifically, in response to the crisis, BASF formed a
three-pronged task force focused on legislation, constitutional challenges, and the Judicial Council. Plans for
the legislative task force include making lawmakers aware
of how important court funding is, says BASF Treasurer
Chris Kearney, who cochairs that group. “They haven’t
heard from bar associations and the legal community in
the past. We’re now committed to being an active voice.
The legislature can’t continue to reduce court funding to
solve the state’s budget problems.”
The second element of that group involves brainstorming with legislators about potential ways to increase service fees, which would allow each county court to raise
revenue, Kearney adds. “Unfortunately, when budget
cuts and anticipated layoffs were announced, there was
so little time to move for legislation in the session that
just closed. We’re in preliminary discussions now and will
come to the legislators with proposals. We’ll do outreach
to the governor as well.”
Meanwhile, the Judicial Council–focused task force is
brainstorming about “short- or near-term solutions to
San Francisco’s fiscal crisis while also letting the AOC
and Judicial Council know we want to partner with them
long term,” Kearney says. Specifically, BASF is lobbying
the Judicial Council to authorize trial courts to assess a
new user fee (as opposed to a statutorily mandated filing
fee) in an area, such as complex litigation, that would
not affect access to justice for the poor. That would provide a steady cash infusion until a legislative solution is
reached and would not threaten the unification funding
formula, where every trial court receives a funding percentage. Eventually, the goals of the legislative and the
Judicial Council task force groups may end up merging,
Kearney notes.
Dermody is chairing the group examining potential legal
remedies to the funding crisis. Although she couldn’t discuss specific plans because of work-product concerns, the
group has looked into a variety of legal claims, she says.
“We consider litigation a step of last resort, but a tool
that’s important to have available.”
As BASF’s president-elect, Dermody is also on the Executive Committee of the Open Courts Coalition, a statewide committee of bar leaders and litigators working
together to help solve the crisis. For his part, State Bar
President Streeter, also a member of the Open Courts
Coalition, is advocating a ballot initiative that would
embed into the state constitution a mandatory indexing
formula, fundamentally changing how the justice system
is funded.
According to Skaff, BASF is exactly the right organization to drive a solution to this crisis because it has “the
smartest, most creative, and most dedicated group of
lawyers you could wish for.” Skaff is hopeful that a resolution will come in the 2012 legislative term. “The challenges are real,” she says, “but there are also real solutions
available. With persistence and broad support from the
legal community, we can restore funding and access to
justice in the state.”
A former lawyer, Leslie A. Gordon is a freelance journalist living in San Francisco and can be reached at
[email protected].
Photos by Jim Block
THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 15