The cuts continue; L.A. Court loses hundreds of employees

One day after running my Perspective column, entitled "Legislature Using Purse Strings to Bind Judiciary," the Daily Journal has published a story today that chronicles the massive cuts to the Los Angeles County Superior Court system.  Rebecca U. Cho & Catherine Ho, Hundreds Of L.A. Court Workers to Be Laid Off Today (March 16, 2010) www.dailyjournal.com [subscription required]. 

329 employees are scheduled to receive pink slips today.  In addition, it is reported that 12 courtrooms will close, but the specifics have not been announced.    The Los Angeles Superior Court currently plan to lay off an additional 500 employees in September.  Los Angeles court officials are reportedly "facing a $79 million budget deficit in the current fiscal year, which is expected to grow to $120 million next year." Judge Charles McCoy is reported to have asked the Judicial Council for permission to use court construction funds for court operations.

In an article by the Los Angeles Times, Presiding Judge McCoy's missing to communicate the court funding crisis was described:

Los Angeles County Presiding Judge Charles "Tim" McCoy's message is loud and clear: His court system, the largest trial court in the nation, is facing deep fiscal trouble in the years ahead due to drastic cuts in state government funding.

Victoria Kim, L.A. County's top judge faces steep opposition to fund diversion proposal (February 16, 2010).  In that article, the uphill battle in front of Judge McCoy is spelled out.  According to Ann O'Malley. O'Malley, who chairs the state's Trial Court Presiding Judges Advisory Committee, 53 presiding judges of the state's 58 trial courts have told her they oppose Judge McCoy's proposed use of the construction fund to cover operating expenses.

If it is even necessary to consider layoffs of hundreds of employees or utilizing a court construction fund backed by bonds, not budget appropriations, to support basic operations, something is seriously awry in California's budgeting process.  Whether or not you agree with Judge McCoy's specific predictions and approach to the problem, there is no disputing that a problem of colossal magnitude now exists.  Pretty soon we won't need to debate tort reform or amendments to California's class action procedures; nobody will be able to have a civil case heard by a judge before the parties and counsel are all dead of old age.

Daily Journal article on unconstitutionality of underfunding California courts

Today's Daily Journal includes a Perspective column, entitled "Legislature Using Purse Strings to Bind Judiciary," authored by colleague Linh Hua and me.  The column discusses in greater detail the unconstitutionality of underfunding the judicial branch.  The article is posted below with permission of Daily Journal Corp. (2010).

If you have difficulty viewing the flash object, the direct link is here.  I thank the editorial staff of the Daily Journal for quickly providing the posting permission.

California's budget problems are threatening a constitutional crisis

A colleague of mine (Linh Hua) and I have been talking out an issue that has troubled me for some time now.  It occurred to me that there must be a constitutional limit of some sort to the underfunding of California's judiciary.  I didn't have any specific case in mind when the concept crossed my mind, and my discussions with other practitioners elicited general agreement without specific supporting authority.  Coincidentally, just as I began to look into this issue, a confirming answer of sorts dropped into my lap.

This evening (for publication on 2/24/2010), Joel Stashenko reports in the New York Law Journal that New York's highest court has held unconstitutional the failure to grant pay raises to judges for the last 11 years.  Joel Stashenko, Denial of N.Y. Judicial Pay Raise Is Ruled Unconstitutional (February 24, 2010) www.law.com.  The high court (the New York Court of Appeals) declared the de facto pay freeze a "crisis" that threatened the separation of powers.  Declining requests for an order mandating an immediate pay raise, the Court said, "By ensuring that any judicial salary increases will be premised on their merits, this holding aims to strike the appropriate balance between preserving the independence of the Judiciary and avoiding encroachment on the budget-making authority of the Legislature."

While the Court proceeded with caution, it also warned, "It [the Legislature] should keep in mind, however, that whether the Legislature has met its constitutional obligations in that regard is within the province of this Court," citing Marbury v. Madison, 1 Cranch 137 (1803). "We therefore expect appropriate and expeditious legislative consideration."

Writing for the 5-1 majority, Judge Pigott said, "Because the Separation of Powers doctrine is aimed at preventing one branch of government from dominating or interfering with the functioning of another co-equal branch, we conclude that the independence of the judiciary is improperly jeopardized by the current judicial pay crisis, and this constitutes a violation of the Separation of Power doctrine."

In California we don't just have a pay crisis, we have a funding crisis.  Our Courts are closed one Wednesday each month, and I've heard mention that an additional closure day is under consideration by some.  We've lost a complex litigation court in Los Angeles County, a court designed to better manage the burdens imposed by complex, multi-party litigation.  If the pay issue in New York is a constitutional "crisis," what California is experiencing is a constitutional debacle.  The judiciary is not just impaired here, it is hamstrung and handcuffed.  As participants operating within one of the presumably co-equal branches of government, we must be vigilant and speak out when it is clear that a failure by one branch imperils the unfettered operation of another.

I intend to continue speaking about this issue until the futility of it all depresses me into silence.

California Proposition 8 elicits constitution-based, discovery rights opinion from Ninth Circuit

For those following the complicated twists and turns of litigation over California Ballot Proposition 8, which amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California, the litigation about that measure continues.  Today, the Ninth Circuit, in Perry, et al. v. Arnold Schwarzenegger (9th Cir. January 4, 2009), issued a writ of mandamus directing the trial court to enter a protective order barring access to internal campaign communications of proponents of the Proposition.  I'm no constitutional law expert, but high-stakes litigation like this tends to create its own complexity, so I simply note the opinion for the constitutional law scholars, fans and practitioners.  I can say that it's not every day that you see discovery limited because it would intrude on the the First Amendment right of freedom to associate.  The one-page appendix to the opinion is also available.