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The State Judiciary's Headlong Retreat From Independence

September 28, 1997|Charles L. Lindner | 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."

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