Court System Is on Life Support

Friday, April 26, 2013

Page 6

IN MY OPINION (Column)

Court System Is on Life Support

By GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

Although not prone or even known for the use of metaphors, our new Chief Justice hit one over the fence when, in her State of the Judiciary address, she cited Gideon v. Wainwright as similar to the present court closures problem. Yes, our present predicament is tragic. A judicial network is essential, especially in our present society. The California court system is nearly on life support. We have 58 trial courts, six Courts of Appeal and one Supreme Court. The budget has been reduced by more than a billion dollars. The courts are funded by the State , but the State is broke.

We cannot rebuild dilapidated and unsafe courthouses. 67 courtrooms are closed. A costly computer project has been scrapped. The result: Endless delays in trials , higher filing fees, closures of branches, elimination of positions and a judicial system that is suffering. Like our much neglected education system, the judicial system is suffering from neglect, but it does not seem very benign. Shades of the system that Gideon encountered? Yes. Clarence Earl Gideon sat in a Florida prison cell waiting to serve his five-year prison sentence for breaking and entering after his request for funds for an attorney or for an attorney was denied as the conviction was not a capital case. For Gideon there may just as well have been no Constitution.

Gideon had broken into a pool room in Bay Harbor, a sleepy little community in Panama City, Florida. T’was not a major league crime, and the victim was not the President of the United States. Gideon had never heard the word certiorari. Yet, he managed to handwrite in pencil a petition, mailed it to the United States Supreme Court where it fell into the sympathetic hands of Chief Justice Earl Warren who assigned the case to Abe Fortas, then a name partner in Arnold, Fortas and Porter, a highly respected and prestigious law firm. From then on in, everything turned out well and the result was a new rule —that even (or especially) an indigent person is entitled to representation by counsel no matter how minor the crime

The landscape of the legal system was thereby changed, and when the budget crunch in California hit the California courts, it created a near revolutionary change and problem. This dilemma was soon recognized by our Chief Justice who saw the problem and referred to it by its most appropriate name. Yes, Gideon v. Wainwright is alive and well, and its consequences are almost beyond belief. Like the education system in California, the effect has been almost insurmountable. Courtroom construction has almost stopped. Many courts have closed. Hours have been cut. Court fees have skyrocketed. Courtrooms have been closed. Unconscionable delays in getting court dates are common. Poor quality of defense representation has again surfaced. What is most crucial is the consolidation plan which requires new cases to be filed in certain hub courthouses which disrupt family lives and impose staggering burdens on people with disabilities, either financial or legal.

The well-to-do, as is usual, are not affected by these inconveniences on an equal basis. That is because we have allowed a system of rental judges, a concept which just a few years ago must have been hostile to our way of thinking. Now, at least in the affluent area of family law litigation, the “deprived” do not suffer.

One way to ameliorate this problem is to review the system of judicial pensions. The system of retirement pensions arose in the days when the United Steelworkers or Coal Miners needed relief after years of abuse. Think of John Lewis and the problems of the thirties and forties. Do the judges today need that system which allows pensions after only twenty years of service? Judges usually covet their positions in society to which they aspire. They are neither overworked nor underpaid and in retirement retain not just their prestige, but healthy remuneration as pro tem judges. Most are retired after twenty years of service at an age which is anything but disabling. Yes, the system of judicial pensions needs to be examined.