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HomeMy WebLinkAboutMINUTES - 01201987 - 1.56 TO: ARD OF SUPERVISORS OA 1 FROM: Phil Batchelor Contra County Administrator Costa DATE'. January 15, 1987 County SUBJECT: Use of Temporary Court Commissioners SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION 0 RECOMMENDATION: Acknowledge receipt of report from the Judicial Council of California on the use of temporary court commissioners in the Municipal Courts of Contra Costa County, and reaffirm the Board' s support for the program. BACKGROUND: In 1984, Senator Daniel Boatwright carried legislation ( SB 1752, Chapter 1147 , Statutes of 1984) which authorized the use of temporary court commissioners (one for each municipal court district) in Contra Costa County. This program was intended to be a pilot project in the use of temporary court commissioners. The authorizing legislation sunsets on December 31, 1987 . SB 1752 required the clerk of each court to which a temporary commissioner is appointed to: "Report any complaints regarding the use of the temporary commissioner to the Judicial Council and the Judicial Council shall report to the Legislature on or before January 1, 1987 as to whether it has received any evidence that the part-time nature of the employment of temporary commissioners has affected their acceptance by lawyers and litigants ." The required report to the Legislature is attached. The general tone of the report is most supportive of the use of temporary commissioners to fill in for a commissioner who is absent on vacation or sick leave, or while a commissioner is filling in for a judge. The Judicial Council, which originally was opposed to the use of temporary commissioners, after receiving input from the courts, court staff, lawyers and litigants, and after personally viewing temporary commissioners concluded as follows: " . . .the Contra Costa County program appears to have achieved a successful balance between efficient court administration and high judicial standards where careful management standards were observed and specific safeguards were incorporated into the program. " CONTINUED ON ATTACHMENT: X YES SIGNATURE: X RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE X APPROVE OTHER SIGNATURE(S):ACTION OF BOARD ON January 20, 1987 APPROVED AS RECOMMENDED OTHER _ VOTE OF SUPERVISORS HEREBY CERTIFY THAT THIS IS A TRUE XUNANIMOUS (ABSENT ) -'AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. CC: County Administrator ATTESTED JAN 2 0 1987 Presiding Judges , Muni Courts Clerk-Administrator, Muni Courts PHIL BATCHELOR, CLERK OF THE BOARD OF SUPERVISORS AND COUNTY ADMINISTRATOR BY DEPUTY M382/7-83 T Page 2 The Board has included in its 1987 Legislative Program a request that the sunset provision be repealed, thus permitting the use of temporary court commissioners to continue indefinitely. Senator Boatwright has already indicated his willingness to carry such legislation. It is clear that the use of temporary court commissioners has successfully assisted in managing the heavy workload of the municipal court. JUDICIAL COUNCIL OF CALIFORNIA Report on Temporary Court Commissioners - Contra Costa County (In Response to Sen. Bill No. 1752 (Eoatwright) Stats . 1984 , ch . 1147) Municipal and Justice Court Committee November 22 , 1986 Temporary Court Commissioners -- Contra Costa County I . Introduction This report is prepared pursuant to Government Code section 73362 .1(f) , which requires the Judicial Council to report to the Legislature on the use of temporary court commis- sioners in the Contra Costa County municipal courts. The need for trained and experienced municipal court bench officers to perform "subordinate judicial duties"1/ has long been recognized by the Judicial Council .?/ The council' s recognition of the need for subordinate judicial officers to aid in the efficient and economical admin- istration of justice in traffic cases has, however, been balanced, historically, by concerns that persons of suitable expertise be appointed to fill authorized positions, and that bench officers not engage in the private practice of law.3/ 1/ See California Constitution, article VI , section 22. 2/ In 1970 , the , Judicial Council recommended that legislation be enacted to authorize the appointment of traffic referees in municipal courts (See Judicial Council of California Annual Report (1970) pp. 39-43; Gov . Code § 72400, added Stats . 1970) . The council later recommended legislation which expanded the scope of a traffic referee' s power in infraction cases . (See Judicial Council of California Annual Report (1975) pp. 29-34) ; Government Code section 72450 governing the appointment of traffic trial commis- sioners was sponsored by the Judicial Council and enacted in 1972 (see Judicial Council of California Annual Report (1973) p . 157) . In 1984, the council proposed legislation to amend Government Code section 72450 to eliminate the necessity to obtain the approval of the Chairperson of the Judicial Council upon the appointment of a traffic trial commissioner (See Judicial Council of California Annual Report (1984) pp. 45-46) . 3/ For example, traffic referees must be attorneys or former justice court judges with five years experience and must serve the court full-time or, if appointed to serve two or more courts, sufficient time with each to total full-time (Gov. Code , § 72400) . Traffic trial commissioners must have the qualifications of a judge of the municipal court, In a 1984 report to the Legislature on the use of com- missioners and referees in superior court, the council voiced concern over the expanded permanent use of commissioners and referees as temporary judges4/ and the council has tradition- ally favored the creation of full-time, paid judicial and subordinate judicial positions .5/ The preference for full-time service is based partially upon a recognition that expertise is attained through experience.6/ It is further supported by the desire to avoid conflicts or the appearance of impropriety created when an individual practices law before the same court in which he or she sits in a judicial role .7/ 3/ (Continued) serve full-time (but may be appointed to serve two or more courts) and must not engage in the private practice of law (Gov. Code, § 72450) . 4/ See Judicial Council of California , Annual Report (1984) pp. 35-44: whether the creation of "permanent" temporary judges would withstand constitutional scrutiny where a commissioner or referee was without the minimum number of years admission to the State Bar required of regular judges, without a specific duration of office or obligation to stand for election, not subject to investigation by the Commission on Judicial Performance, not required to decide all matters within 90 days before receiving a salary and not guaranteed retirement benefits. 5/ See Government Code Section 71042; 56 Ops . Atty. Gen. 315; Judicial Council of California Biennial Report (1953) p. 15; Judicial Council of California Annual Report (1972) p. 21. 6/ See Final Report on the Summary Traffic Trial Project , March 1974 (funded by The California Office of Traffic Safety and The National Highway Traffic Safety Administra- tion) : "A commissioner serving an extended period of time handling traffic cases will gain considerable expertise in the field." (at p. 25) . 7/ See Judicial Council of California Annual Report (1972) p. 21 ; also , justice court judges , some of whom serve the courts on a part-time basis, may not practice law before any justice court in the county in which he or she resides. Government Code section 68083(a) . 2 Senate Bill No. 1752 (Boatwright, Stats. 1984, ch. 1147; effective January 1, 1985) , authorized the use of temporary court commissioners in Contra Costa County , subject to the conditions set forth in Government Code section 73362.1.8/ That section authorizes "one position of temporary court commissioner" to serve each municipal court district in Contra Costa County. Section 73362 . 1(f) directs the clerks of each court to which a temporary commissioner is appointed to: [R] eport any complaints regarding the use of the temporary commissioner to the Judicial Council, and the Judicial 8/ Government Code section 73362 .1 provides in part : (b) A temporary court commissioner shall be appointed by the presiding judge of the court from a list of temporary court commissioners established and approved by a majority of the judges of that court . The temporary commissioner shall possess the same qualifications the law requires of a municipal court judge, and shall not engage in the private practice of law before any court of the municipal court district to which he or she is appointed, and is subject to disqualification as provided for judges. (c) A temporary court commissioner shall receive , as sole compensation for such service, an hourly fee for each hour or fraction of an hour of service which is equivalent of the hourly wage of the first step in the salary range for full-time official municipal court commissioners in Contra Costa County , without any other benefit included in the compensation of any other municipal court officer or employee in Contra Costa County. (d) A temporary court commissioner shall perform those functions conferred by law and assigned by the presiding judge. Before any action or proceeding is tried or heard by a temporary court commissioner, any party to, or any attorney appearing in, the action or proceeding shall, how- ever , be entitled to require, by oral or written motion without notice, that the action or proceeding be reassigned or transferred, whereupon the action or proceeding shall be reassigned or transferred as promptly as possible to a judge , court commissioner , or referee of the court . The court shall, prior to the commencement of any such trial or hearing , provide notice to each party or attorney of record in the action or proceeding of this entitlement to require reassignment or transfer. 3 Council shall report to the Legislature on or before January 1 , 1987, as 'to whether it has received any evidence that the part-time nature of the employ- ment of temporary commissioners has affected their acceptance by lawyers and litigants. This report describes the Contra Costa County tempo- rary commissioner program and addresses whether the Judicial Council has received any evidence that the part-time nature of the employment of temporary commissioners has affected their acceptance by lawyers and litigants. II. Discussion 1. Method of inquiry In March 1985 the Administrative Office of the Courts notified the clerk-administrator of each Contra Costa County municipal court that a study of the temporary commissioner pro- gram would be conducted, and requested that any written or oral complaints regarding the use of the temporary commissioners be noted and either filed or referred directly to this office . In April 1985, after discussion with each court administrator, the courts were asked to maintain records or compile data to reflect the following: a . The nature and scope of the use of temporary commissioners including the number of temporary commission- ers appointed and the type and approximate number of hear- ings conducted by each; b . The number of transfers/reassignments requested as to each temporary commissioner , including whether trans- fer or reassignment was requested by a lawyer or litigant; c. The number of disqualifications as to each tempo- rary commissioner; 4 d. The number and nature of complaints regarding the use of each temporary commissioner. Written complaints were to be filed and copies transmitted to the Administra- tive Office of the Courts upon request and the date and "nature" of oral complaints were to be noted. The "nature" of the complaints was to include whether the complaint was lodged by a lawyer or litigant. Sample forms designed by the Clerk-Administrator of the Walnut Creek-Danville Municipal Court were distributed to each court for record-keeping purposes.9/ Staff visited Contra Costa County courts during 1985 and 1986 to interview court administrators, collect data , and observe hearings conducted by temporary commissioners. Tele- phone interviews were conducted periodically throughout the project . In September 1986, court administrators and temporary commissioners were asked to respond to questionnaires on the temporary commissioner program 10/ and comments on the program were invited from the judges and regular commissioners of each court. 2 . Description of the Contra Costa County program There are four municipal court districts in Contra Costa County .11/ Prior to January 1, 1986, two full-time commissioners served two courts each under authority of Govern- ment Code section 73362. Section 73362 was amended effective January 1 , 1986, to authorize "four court commissioners for all districts in total. " 9/ Attached at pp . 15-16 . 10/ Attached at pp. 17-21 . 11/ Bay Judicial District (Richmond) ; Delta Judicial District (Pittsburg) ; Mt . Diablo Judicial District (Concord) ; and Walnut Creek-Danville Judicial District (Walnut Creek) . - 5 a . Walnut Creek-Danville The Walnut Creek-Danville Municipal Court began the use of temporary commissioners in March 1985. Announce- ments soliciting applications were circulated through the Bar Newsletter and posted at several public locations. Applications were screened by the judges of the court and individual interviews were conducted. Successful candi- dates were placed on a list and subsequent selections were made through a process of nomination by judges to supple- ment the original list as needed. In August 1985 the 11 temporary commissioners on the Walnut Creek list averaged 16 years admission to the practice of law, with a low of .6 years and a high of 30 years . As the court gained experience with the temporary commissioner program, the list was reduced from 11 to 7. The majority of those selected received up to one half day of orientation by the presiding judge and the court administrator, and several sessions of "hands on" instruc- tion by the court commissioner during actual court hearings. Assignments were to those tasks normally handled by the court commissioner: traffic arraignments (moving and parking) , criminal infraction arraignments (animal and sign ordinances , etc. ) and trials in traffic, criminal infraction and small claims cases. Temporary commissioners were used on a rotating basis to fill in during the absence of the full-time com- missioner or upon assignment of the full-time commissioner to a judge 's calendar. Approximately 450 hours of court- room time were provided by temporary commissioners between March 1985 and September 1986. b . Mt. Diablo The Mt . Diablo Municipal Court began the use of temporary commissioners in March 1985 . Both the screening and training of the Mt. Diablo commissioners were conducted 6 by the Walnut Creek court and the Walnut Creek list was adopted by the judges of the Mt . Diablo court. Temporary commissioners were assigned on a rota- ting basis to hear traffic arraignments, traffic and small claims trials, civil law and motion matters and unlawful detainers and served when the regular commissioner was absent or assigned to a judge' s calendar . Approximately 400 hours of service were provided between March 1985 and September 1986. c. Bay The Bay Municipal Court began the use of tempo- rary commissioners in April 1985. Advertisements for the position were mailed to all attorneys in the Bay Judicial District inviting resumes from those persons not practicing in the district or re- tired from active practice . Applications were reviewed by the judges of the court and a list of approved candidates was created. In August 1985 , the eight temporary commis- sioners on the Bay list represented an average of 16 years admission to the practice of law, with a low of 7 years and a high of 31 years. Training consisted of approximately four hours of orientation given by the presiding judge or the regular court commissioner, two or three days of in-court observa- tion , and printed materials including copies of the bail schedule and a memorandum on special procedures . Temporary commissioners were assigned to traffic arraignments and small claims and traffic trials on a rota- ting basis and used primarily when the court ' s full-time commissioner was assigned to "back-up" a judge. Approxi- mately 1100 hours were provided by temporary commissioners between April 1985 and September 1986. 7 d. Delta Delta Municipal Court began the use of temporary commissioners in August 1985. The court solicited applications from local bar associations and retired public defenders and district attorneys, and resumes were submitted to the judges for approval. Approved applicants attended training sessions given by the Walnut Creek-Danville Court , and received in- court training from the court 's full-time commissioner and a packet of information on local forms and procedures. Temporary commissioners heard walk-in traffic arraignments, traffic and small claims trials and orders of examination and served when the regular commissioner was absent or assigned to a judge' s calendar . Approximately 200 hours were provided between August 1985 and August 1986. All four courts recruited some highly qualified candidates in terms of experience and professional achieve- ment . There was also considerable overlap in the four lists and some individuals served more than one court on a regular basis. 3 . Summary of data collected a. Disqualifications/transfers Government Code section 73362 .1(d) requires that prior to the commencement of any action or proceeding heard by a temporary commissioner, the court must provide notice to each party or attorney of record of the entitlement to require reassignment or transfer of the case to a judge, court commissioner or referee . Under section 73362. 1(b) temporary commissioners are also "subject to disqualifica- tion as provided for judges. " Responses from temporary commissioners to the September 1986 survey indicate that notice of the option to reassign or transfer was given in almost all cases. 8 From March 1985 to September 1986 the four muni- cipal- courts reported a total of 24 requests for transfer or disqualification. b. Court observation Hearings conducted by four temporary commis- sioners on traffic arraignment, traffic trial, and small claims calendars, were observed at random by staff of the Administrative Office of the Courts. Staff observed that each hearing was conducted in a professional and efficient manner and staff did not observe anything to indicate that temporary hearing officers were "unacceptable" to lawyers or litigants . i c . Complaints Between March 1985 and October 1986, four com- plaints about temporary commissioners were forwarded by the courts to the Administrative Office of the Courts. One small claims litigant complained that a tempo- rary commissioner' s attitude was "arrogant and demeaning" and his decision a "lapse of professionalism" ; another small claims litigant complained that a temporary commis- sioner "hurri.ed" her, acted in a manner "both prejudiced and unprofessional," allowed the opposing side more time to present its case and exhibited an intimidating demeanor; a participant in a traffic proceeding reported being humili- ated by a temporary commissioner and stated that the com- missioner had to ask the clerk ' s advice on a technical matter; and one enforcement officer complained that a temporary commissioner refused to impose a mandatory sen- tence and reversed his finding of guilty after being informed of the relevant Vehicle Code sentencing provision by the officer. 9 d. September 1986 questionnaires Response to the temporary commissioner program by the clerk-administrators of the four Contra Costa Municipal Courts was favorable.. From the administrators ' perspec- tive , the program alleviated case processing problems . No administrator indicated that the part-time nature of the employment of temporary commissioners affected their accept- ance by lawyers or litigants. Appeals from decisions made by temporary commis- sioners, as compared to those from decisions made by other bench officers , were reported as follows : "no noticeable difference" ; "no recognizable difference" ; "only three appeals filed" from decisions made by part-time commis- sioners; and "dramatically low." The clerk-administrators ' overall assessments of the program tend to reflect their concern with court efficiency and calendar management : Our conclusion is that the program is immensely successful . The ability to summon temporary commissioners in the absence of the full-time commissioner has had an extremely beneficial impact on case proc- essing. Judges of the court do not have to reduce their department operations to absorb traffic and small claims activities . Backlog development in traffic and criminal infrac- tion cases is avoided since that department operates on a continuous basis. Because of the low, hourly pay scale for temporary com- missioners , expenses are minimized and reflect considerable savings over the use of assigned judges . Very good -- crowded calendars are allevi- ated and protracted preliminary hearing cases are handled more effectively by having part- time commissioners handle traffic/small claims matters. 10 Being able to utilize per diem commissioners _has simplified coverage of vacations and sick leave -- eliminating need for written stipulations. Having individuals who have been familiarized with our automated system has simplified courtroom operations and also provides exchange of information between courts when same individuals sit in more than one court. This program could help provide back-up relief for judicial absences by having regular commissioner sit as Rro tem on juries, but cooperation is required Trom the prosecution and defense in obtaining stipulations . We have been able to have the same person sitting for several days at a time which provides continuity, and are able to pay these attorneys instead of asking for free assistance. Also, it is easier to cover these assignments when there is a list of people available who are willing to be on call. Completed questionnaires were received from twenty temporary commissioners. Their overall assessment of the pro- gram was favorable and none believed that the part-time nature of his or her employment affected acceptance by lawyers or litigants. The commissioners commented generally that the program appeared to be of benefit to the courts in alleviating congest- ed calendars. Many remarked that the experience was personally rewarding. Several suggested that more use should be made of temporary commissioners to give the courts more flexibility. For example , it was observed that , assuming the temporary com- missioner is qualified to handle misdemeanors or a general criminal arraignments calendar , it would appear reasonable that paid, sworn bench officers should handle any assignment a vol- unteer , unpaid pro tem might be given. Those commissioners who recommended improvements to the program pointed to a need for greater uniformity of proce- dure between courts , more instruction on practice and procedure 11 in the form of classes or printed material, clearer guidelines on the usual range of fines and the use of traffic violator school , better communication between clerks and bailiffs for information, compensation based upon hours spent in the court- house rather than hours sitting on the bench and more advance notice as to dates of service. One commissioner suggested that at the present level of compensation (approximately $24/hour) the program remains an essentially pro bono enterprise and recommended that serious consideration be given to raising the present salary . Finally, the presiding judges of two courts assessed the temporary commissioner program to be beneficial to the effective operations of the court .12/ Neither judge reported complaints about the program. III . Conclusion and recommendations From March 1985 through September 1986, temporary com- missioners provided thousands of hours of service on high-volume calendar assignments . The four complaints received do not appear to raise substantial questions about the quality of that service, although they serve as a reminder that diligence is required in selecting, training, and reviewing the performance of temporary commissioners. Two clerks and several temporary commissioners did allude to problems that may arise when a large rotating pool is used on a temporary basis. The clerks refer to the continuity provided by having the same person sit for several days at a time and the benefit derived from the use of persons familiar with the court 's automated system. And the need for continuity and additional training and guidelines was expressed by several part-time commissioners who appear to have served the courts 12/ Letter of October 3, 1986, from Presiding Judge John C. Minney , Walnut Creek-Danville Municipal Court; letter of October 7, 1986, from Presiding Judge John D . Hatzenbuhler, Mt . Diablo Municipal Court. 12 relatively infrequently. These comments suggest that a pool of part-time hearing officers should be limited so as not to dilute the positive effects of continuity, training and experi- ence. In summary, however, the Contra Costa County program appears to have achieved a successful balance between efficient court administration and high judicial standards where careful management standards were observed and specific safeguards were incorporated into the program. Those safeguards include provisions in the authorizing legislation that a temporary commissioner is required to possess the same qualifications required of a municipal court judge; a temporary commissioner cannot practice law before any court of the district to which he or she is appointed; a temporary commissioner is subject to disqualifica- tion; and the parties to any proceeding before a temporary com- missioner are entitled to transfer or reassignment. In addition, training was provided for persons selected as temporary commissioners and a performance review process was established. It appears that the success of any program utilizing temporary judicial officers will ultimately depend upon the quality, experience and expertise of the persons selected to fill authorized positions. It is therefore recommended that any future programs utilizing temporary bench officers incor- porate an on-going training program and regular performance reviews, that a minimum amount of courtroom experience be required of every temporary bench officer prior to his or her service and that any pool of temporary hearing officers used on a rotating basis be small enough to ensure continuity of service and the development of professional expertise. 13 Finally, the conclusions drawn from this study are necessarily limited and narrowly focused in response to specific legislation. They should not be construed to favor the use of temporary judicial officers over the creation of full-time paid judicial positions. These conclusions do reinforce the council ' s position that qualified and experienced persons should fill all author- ized judicial positions and that the highest professional stan- dards are essential where the rights of persons unrepresented by counsel are adjudicated. 14 0 z O N W • a p E-0 aw H Ha U A w a za o � a zzz0 N N � H 'd a Lam? O (n t3 v~! • Q Q z H tr' a � • c 0 0 ° � �a W • _H O �-+ v � z O G �+to O N U Nto N H � O .-t 14 V COj to 4 a a E w H W � � U p C C O N O •.i to W 11 41 G1 Rf G W U r+ G bre O > U 15 z TEMPORARY COURT COMMISSIONER PROGRAM ORAL COMPLAINTS Date complaint made: Date of Occurence: Name of Temporary Court Commissioner: Complainant's Name (if offered) : Address: Phone: [ ] Attorney [ ] Litigant [ ] [ ] In person [ ] By phone Type of Case: Case # Nature of Complaint:. Supervisor receiving complaint 16 ` QUESTIONNAIRE - PART-TIME COMMISSIONERS SEPTEMBER 1986 (To be completed by court administrator. ) 1. Indicate the approximate date your court first used a part-time commissioner: . 2. Describe the selection process for your part-time commissioner(s) : 3. Describe any special training given to your part-time commissioner(s) : 4. Describe the nature of your part-time commissioner' s assignment (small claims/traffic arraignments/traffic trials) : 17 5. To your knowledge, did your part-time commissioners give notice to each party or attorney of record of the entitlement to require reassignment or transfer to a Judge, commissioner or referee? I_IYes I INo I_IDo not know 6. Please- compare, if possible, the number of appeals filed from decisions made by part-time commissioners to those filed from decisions made by other bench officers hearing small claims and traffic cases. 7. Describe your court's procedure for handling any complaint made against part-time commissioners. S. In your opinion, has the part-time nature of the employment of temporary commissioners affected their acceptance by lawyers and litigants? If so, how? 18 9. What is your overall assessment of the part-time commissioner program? Has the program alleviated or created any problems for your court? If so, please explain. i . Name of person completing questionnaire: Court: Date: Please mail by October 6, 1986 to: Kathleen F. Sikora Administrative Office of the Courts 350 McAllister Street, Room 3154 San Francisco, California 94102 19 QUESTIONNAIRE - PART-TIME COMMISSIONERS SEPTEMBER 1986 (To be completed by part-time commissioners. ) The Judicial Council is required to report to the Legislature on whether the part-time nature of the employment of temporary commissioners has affected their acceptance by lawyers and litigants. We would like to include your views, anonymously, in our report and request that you complete this questionnaire and return it by October 6, 1986 to: Kathleen Sikora Administrative Office of the Courts 350 McAllister Street, Room 3154 San Francisco, California 94102 Thank you. 1. Indicate the approximate date you first served the court as a part-time commissioner. 2. How long and how often did you serve the court as a part-time commissioner? 3. Describe the nature of your assignment (small claims/traffic arraignments/traffic trials) . 20 40' Did you give notice to each party or attorney of record of the right to require reassignment or transfer to a Judge, commissioner or referee? S. In your opinion, did the part-time nature of your employment affect your acceptance by lawyers and litigants? If so, how? 6. What is your overall assessment of the part-time commissioner program? Can you suggest ways the program might be improved? Name of person completing questionnaire : Court( s) served: Date: 21