Court Draws Scrutiny for Relying on Temps, Commissioners Despite ‘Surplus of Judges’

After a decade of cuts, the Santa Clara County Superior Court this year finally expanded self-help services for the growing number of people showing up to fight evictions, gain custody of their kids or seek divorces without a lawyer. Even after Santa Clara County chipped in $1.6 million on top of the $936,000 from the governor’s budget to take it from three to five days a week and hire more attorneys, people still get turned away.

While a dearth of staff leads to long lines for the public in virtually every department, the court reportedly enjoys more than its fair share of jurists. Correcting the imbalance could free up millions of dollars for customer-facing positions like the perpetually understaffed records desks or the first come, first serve self-help center. But in the contest for resources between staff and judges, the latter hold more sway.

“There’s always a give and take,” court spokesman Benjamin Rada says.

When it comes to the bench, oversight officials say it takes more than it needs.

A new report by State Auditor Elaine Howle shows that in 2016, the judiciary shelled out $7 million of its $27 million budget to provide temporary jurists to five counties that already had the highest number of surplus judges. The audit elides mention of Santa Clara County, but the court’s own data ranks it among the worst offenders for requesting help it arguably could’ve gone without.

Howle concludes that the Judicial Council—the rule-making agency that oversees assigned judges for all 58 counties—failed to check whether the courts asking for help even qualified. “In fact,” she states, “program staff consistently reported that they did not even question the courts’ requests but simply attempted to fill them as best they could.”

Every two years, the Judicial Council evaluates caseloads in each county to come up with an estimate for the required number of judges. For the timeframe of Howle’s audit, the agency set that figure to 67 positions for Santa Clara County. By hiring commissioners and requesting temps, however, the local court had 89 jurists doing work that the Judicial Council figured 22 fewer could handle.

The $854,000-plus the state agency spent on staffing Santa Clara County with extra judges didn’t come directly out of the trial court’s budget; nor do their $176,000-on-average year salaries, which the state budget covers. Additional jurists rack up other indirect costs, however. Around each one orbits a host of staffers, including clerks and court reporters, and operating equipment that put the price of running each courtroom at roughly $1 million a year. That holds true for commissioners, too, though their salaries dip into the local court’s general fund.

Santa Clara County Court General Counsel Lisa Herrick disputes the notion that the temps or commissioners drain resources from other services. She also takes issue with a key premise in the state audit, saying the court disagrees with the way the Judicial Council decides how many jurists each county needs.

“Do we agree that we have a surplus of judges?” she asks. “No.”

Further, Herrick says, Howle’s findings pointed to mismanagement by the Judicial Council, which admits a lapse in oversight—not the trial courts.

“We understand that the state auditors found that the Judicial Council managed the assigned judges program in a way that they don’t think was appropriate,” she says. “But when they’re saying the courts made too many requests, these weren’t the rules at the time. No one pushed back and said, ‘You’re overusing the program.’ And in the auditor’s report there’s even a concession: the Judicial Council says, ‘Yeah, we never asked anybody. We never checked.’”

To the chagrin of retirees working the program, the Judicial Council in 2018 did indeed enact new guidelines. The new rules limit retired judges to 120 days of temp assignments a year and impose a retroactive lifetime cap of 1,320 days. Additionally, judges must wait three months after retiring to sign up for the program. Finally, the Judicial Council must weigh a court’s allocated staffing levels when considering a request for extra help.

Though some of the new rules add clarity and tighten restrictions, case law—namely People v. Engram in 2010 and People v. Swain in 1995—has long held that the purpose of the program is to ease “overburdened courts” or an “overtaxed system.”

Herrick says the state should come up with a better measure of what it means by overburdened. Changing that calculus would require a legislative fix.

“There’s a years-old judicial needs assessment that says, based on your filings, you need fewer judges than the number that you have,” she says, “and that we do, in fact, disagree with. We have the number of judges we have, and they’re all working really hard. They’re trying to send cases out faster. We wish we had more time to spend with all the litigants.”

That baseline was originally based on population, Herrick explains, and fails to consider the additional time and attention required to run some of Santa Clara County’s pioneering programs, such as the mental health, veteran and drug courts. “We manage cases here in a particular way,” she says. “We basically establish calendars and departments to handle cases in a way that we believe provides the most individualized attention that we could provide to the litigants that come before us.”

A judicial branch source who requests anonymity to avoid blowback for advocating to increase the workload for judges says most other courts face similar challenges and run similar programs without going as far beyond the Judicial Council’s allotted positions. “For Santa Clara Superior Court to simply disagree with the statewide study without suggesting any specific flaw in the analysis or methodology has no merit,” he says.

Thankfully, Herrick says, the court’s judicial allocation is now in relatively good standing. Before terming out last year, Gov. Jerry Brown made several appointments, bringing the local allotment of judges up to 77. With five commissioners—two funded by state grants and the rest by the local court—that brings the tally of judicial equivalents to 82.

“We ended up with a fair number,” Herrick says.

Even absent temps, Santa Clara County still has 10 more judges than the Judicial Council deems it needs. That amounts to $10 million in annual courtroom expenditures that could otherwise pay for direct services to the public or to hire 14 more employees to meet the Judicial Council’s staffing allotment of 616 positions.

“That is certainly a possibility,” Rada says. “Other courts have chosen to go that route.”

Add the courtroom costs for those five commissioners, and you’re looking at potentially $15 million a year. Taking a cue from San Francisco and San Mateo by nixing commissioners probably won’t make things easier on employees, Rada argues.

“Staff spends a lot of time here regardless,” he says. “It would create displacement, but not necessarily solve the problem.”

Jennifer Wadsworth is the former news editor for San Jose Inside and Metro Silicon Valley. Follow her on Twitter at @jennwadsworth.


    • Right, he’s a butthurt former public employee. But the moral hazard is the teachers’ union paying for the lawsuit. So blame them for defending a rogue teacher and costing local government.

  1. Ms. Herrick and Mr. Rada have omitted material facts designed to greatly mislead and divert public attention from what is happening in Santa Clara County courts that is nothing short of improper governmental activity and taxpayer waste.

    This county has focused on protecting bad judges, paying judges who aren’t needed and duping families into private judging. Ms. Herrick used private judging before attorney James Cox in her personal divorce case, That case was not noticed to the public as the law requires.

    The amount of money flowing to private judging in California is in the the billions, not millions, and a few lawyers and retired judges including; Catherine Gallagher, James Cox, Richard Roggia, Nat Hales, Ed Mills and Valerie Tarvin take cases from elected judges and move them into secret proceedings contrary to open proceeding laws. ( See California Rules of Court 2.834).

    Private judges often earn more in a year from a single divorce case than the entire budget that operates the Commission on Judicial Performance (watchdog the state’s judges).

    As attorney Patrick Hammon wrote in the Dailey Journal on May 7, 2019, Civil Code of Procedure 538.310 requires cases to be completed in 5 years. In Santa Clara County divorces now take 6-10 years when they are before a privately compensated temporary judge who is often no more than a really bad lawyer who can’t resolve a case , but can collect more fees than they deserve from the pockets of local families.

    90% of private judges acting in Santa Clara County’s divorce cases are white men, leaving little room for diversity and gender bias free judging in cases often secreted from public view.

    Santa Clara County is ripe with corruption in our courts. The problem has only gotten worse since 2012 when Lisa Herrick was appointed as the court’s General Counsel.

    Divorcing couples need court reporters, clerks working past 3pm and interpreters. Parents certainly need better lawyers before they need private judges who seem to have no idea how to manage divorce, custody and domestic violence cases.

    Mr. Rada should be focusing on producing public records rather than worrying about how to spin the State Auditor’s report.

  2. The court system is a complete waste of resources. For every dollar spent wisely, $20 are wasted. Now, abuse of temp employee systems and contractors isn’t just a court system issue…I worked at the City of San Jose, and they had a lot of “temps” there for over two years…temps who, in my opinion, were treated poorly and used by Admin Officers to make their lives easier. Many of these “temps” should be made full-time, or let go. They work with crappy benefits and wages — just hoping to get an opportunity. It’s sad.

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