California Courts in Crisis: San Francisco Task Force Needs a “Plan B”

Ever get the feeling there’s nothing you can do? That’s the feeling that I and perhaps many other attorneys had when we departed a meeting last week at the San Francisco Bar Association to address the fiscal crisis that is shutting trial courts statewide and hitting San Francisco particularly hard, creating an unfathomable backlog to civil litigation.

I attended the July 30 meeting looking forward to a robust discussion about creative ways that attorneys can get together to help in the court crisis situation. As detailed my earlier blog post, “5 Ideas on What Attorneys Can Do About the California Courts in Crisis,” I believe the legal community needs to face the real possibility of no additional funding and come up with a “Plan B” to cope with the reality of a decimated Superior Court. With nowhere near the number of judges and court staff needed to handle cases, we need to figure out how to keep cases moving forward until significant funding is restored—if it’s restored.

Instead, we heard a lot of daunting facts and requests that we personally lobby to increase funding. I certainly support contacting the Governor’s Office and Legislature to make the case that the funding cuts will delay justice to the point where justice will be denied. Our judicial system won’t function after taking such a big hit. But given the state of the state, we must come up with solutions in addition to “more money.”

The facts given at the meeting were depressing as hell. Presiding Judge Katherine Feinstein of the San Francisco Superior Court told the audience of predominantly civil attorneys the following:

• 41% of the supporting staff is being let go in San Francisco, which is over 200 people.
• Out of the existing 15 departments for general civil cases, only 3 will remain after the budget cuts.
• Both complex litigation departments will be closed.
• The CMC departments will close.
• One of the two Law and Motion departments will close.
• Five other counties will be facing major layoffs in the next few weeks.
• Statewide, the judicial system is reeling from over $1.1 billion in cuts from what was a $3 billion budget a short while ago.

Many attorneys, including Stu Gordon of Gordon & Rees for the defense bar, and Mike Kelly of Walkup, Melodia, Kelly & Schoenberger for the plaintiff bar, expressed dismay about the situation, with a particular emphasis on the calamity of closing the Complex Litigation Departments. Mr. Gordon raised the issue that the fees generated by the Complex Litigation Department for major complex cases are huge. Judge Feinstein replied that the problem with court fees is that they all go to the State of California, and then only 3% are returned to San Francisco Superior Courts. In other words, even though SF Superior raised much more money in fees, they receive only a very small portion of that revenue back from the State.

This discussion on fees raised the issue of whether San Francisco alone, or with other courts, could raise revenues on their own to help pay for the court. According to Proposition 26 that was passed last year, any “fee” increases would be considered a tax increase that requires a two-thirds majority of the Legislature, which will never happen. Additionally, even if it did happen, under the current allocation system, San Francisco would only receive 3% of the increased revenue. In order to change this allocation, or to allow San Francisco to develop its own revenue stream, would require acts of the Legislature to modify Proposition 48 enacted in 2002 that consolidated all the trial courts to be run by the State of California, rather than county by county. (Add this to the list of reasons why I hate Propositions and their unintended consequences.)

As to the question of how SF Superior got in this awful situation, Judge Feinstein had an interesting story that adds a new layer to understanding the bad relations between SF Superior and the Administrative Office of the Courts (AOC), the staff agency of the Judicial Council that has been blasted by Feinstein and others for diverting money from trial courts to other programs and construction projects. She indicated that SF Superior was going to lay off over 100 people last year, but was asked by the AOC not to lay off the staff since it would affect future funding negotiations with the State. SF Superior agreed not to do the layoffs. What happened? Not only did additional funding not come through, but even larger cuts occurred.

Even with all this bad news, I remain optimistic that cases will continue to move forward and get resolved, albeit in different ways. My previous post advocates use of the One-Day Trial option, “998” settlement offers and more effective preparation for ADR to get cases settled, among other things. I’d also greatly appreciate any talented mediator who works in private practice to donate some of his or her time for pro bono judging.

Bottom line, we can’t put all our eggs in the basket of lobbying Jerry Brown and the Legislature for help. We’ll need more innovative and pro-active thinking on all sides to get through this mess.

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