The budget proposes to change the responsibilities of the counties and the state with respect to funding the trial courts. The budget proposes total expenditures of $1.6 billion for support of the Trial Court Funding Program. This is $143 million, or 8 percent, less than estimated current-year expenditures.
The program is supported by appropriations from the Trial Court Trust Fund, which include:
We discuss Contributions to the Judges' Retirement Fund (Item 0390) in detail in the State Administration chapter of this Analysis. We discuss the remaining elements below.
Budget Proposes Decreased Funding. Since 1994-95 state and county expenditures for trial court operations have been based on the major functions that courts provide (such as verbatim reporting and court interpreter services). Figure 25 shows the total state and county expenditures for trial courts for the current and budget year, by functional category.
Trial Court Funding Program
1994-95 Through 1996-97
(Dollars in Millions)
|Trial Court Funding (Item 0450)|
|Functional budget funding||$1,507.6||$1,726.1||$1,576.7|
|Assigned judges program||13.3||12.1||18.3|
|Judges' Retirement Fund (Item 0390)||$43.7||$54.8||$54.8|
Total State and County Expenditures
Trial Court Operations
1994-95 Through 1996-97
(Dollars in Millions)
|Trial Court Functions|| Actual+++a@@@|
| Percent Change
|Dispute Resolution Programs||20.6||34.9||34.1||-2.3|
|Staff and Other Operating |
|+++a@@@ Differs from Governor's Budget to reflect actual expenditures reported by Judicial Council.|
The primary reason for the $143 million decrease in expenditures proposed for 1996-97 results from various modifications to expenditure categories shown in Figure 25. Several items have been removed from the functional budget categories in the budget year and thus are no longer considered trial court costs. In the last two functions, "Other Operating Expenses" and "Indirect Costs," costs for court building alterations, minor remodeling, and utilities have been excluded from the totals, and account for much of the decrease for these two functions. "Revenue Collections" has also been excluded for 1996-97. Excluding these costs as part of the state trial court budget means that they will become the responsibilities of the counties.
It should be noted that preliminary information obtained from the Judicial Council indicates that the total expenditures for trial court functions will be approximately $1.5 billion for the current year, rather than the $1.7 billion shown in the Governor's Budget. This is due primarily to the fact that many counties have not provided the level of funding that was anticipated in the 1995 Budget Act.
Courts Request More Than Budget Proposes.Under current law, the Trial Court Budget Commission (TCBC) reviews the budget requests from trial courts, and allocates and reallocates trial court funding monies among the various courts. The trial courts made requests to the TCBC for 1996-97 that totaled about $1.9 billion. The TCBC reduced those requests to $1.7 billion, which is the amount it presented to the administration as its proposed Trial Court Funding budget for 1996-97. However, the Governor's Budget reduced the amount requested by the TCBC by an additional $120 million, or 7 percent.
The Judicial Council has made positive steps toward furthering the coordination of judicial and administrative resources in the trial courts. Given the decentralized nature of the courts, it will be important for the council and the Legislature to continue to closely monitor implementation of the coordination requirements.Trial court coordination requirements have existed in statute since 1991. However, courts were given considerable independence in coordinating their operations. As a result, no standards existed by which to measure the statewide coordination efforts of trial courts until 1995.
What Is Coordination?The goal of trial court coordination is to increase the efficiency of court operations, thereby improving the service to the public. Coordination efforts have focused on coordinating the judicial and administrative functions of the courts (superior and municipal) in a county. Judicial coordinationemploys cross-assignment of superior and municipal court judges to handle backlogs and overflows of cases. Administrative coordinationconsists of merging the administrative operations of the courts within counties. Examples include the provision of jury services by one office for all the courts within a county, or having one budget staff for all the courts within a county.
Level of Coordination Varies. Currently, the level of coordination among courts varies substantially. For example, in some counties administrative operations of the courts have been completely or partially merged. In other counties, there is substantial judicial coordination through cross-assignment. For a few counties, all operations (judicial and administrative) have been totally consolidated. Finally, in some counties there have been almost no coordination measures implemented.
Specific Requirements and Timeliness Adopted.On January 25, 1995, the Judicial Council unanimously agreed to require all trial courts within a county to coordinate judicial activities and integrate all direct support and information services. In addition, the council required the trial courts to complete certain coordination activities by specific dates. These included coordinating the judicial activities and support services of the county's courts by July 1, 1996, and submitting a unified budget for all trial courts within the county and establishing unified financial management procedures beginning in 1997-98. The Judicial Council's new implementation schedule allows for better monitoring of the progress towards coordination.
First Two-Year Coordination Plans Submitted to Judicial Council.Trial courts are required to submit to the Judicial Council every two years a county coordination plan. The plans for 1995-96 through 1996-97 were due to the council by November 1, 1995. Plans were submitted by 54 counties and reviewed by the council. Of the 54 coordination plans reviewed, 21 were accepted by the Judicial Council on January 24, 1996. Plans disapproved by the council must be revised and resubmitted.
The Judicial Council advises that it does not have up-to-date information on the current progress of the trial court coordination efforts in the individual courts. The council also advises that it intends to gather more specific information and make it available to the Legislature in the near future.
New Law Could Make Court Unification Easier. Chapter 963, Statutes of 1995 (SB 162, Lockyer) established a new procedure that could accelerate existing efforts of the judiciary to consolidate and unify the trial courts. Specifically, the measure provides that upon the vacancy of a municipal court judgeship, the Governor may convert the judgeship to a superior court judgeship, as long as there is at least one remaining municipal court judgeship in the county. To the extent that these newly created superior court judgeships handle both municipal and superior court cases, the measure would further unification. However, according to the Judicial Council, the Governor has given no indication that he plans to use his authority to convert any judgeships at this time.
Requests by the Judicial Council and the state's two largest superior courts for additional funds in the current year could have a significant impact on the relationships between the courts, the state, and the counties. We recommend that the Judicial Council report to the Legislature during budget hearings on the status of current-year funding issues.The Judicial Council has indicated that a number of trial courts are projecting funding shortfalls in the current year. Several strategies have been developed by the Judicial Council and several of the trial courts to pursue additional funding for the current year.
Judicial Council Applies for Current-Year Deficiency.In October 1995, the Judicial Council filed a deficiency request with the Department of Finance (DOF) on behalf of the trial courts for an amount up to$592 million--the difference between the state share of support initially proposed in the Governor's 1995-96 Budget and the amount finally approved by the Legislature and the Governor. The amount proposed in the Governor's Budget had assumed the enactment of a state-county realignment proposal that was ultimately rejected. That proposal would have increased trial court operational costs for the state in exchange for increased social services expenditures by counties. The DOF has not acted on the deficiency request.
At a January 24, 1996 meeting, the Judicial Council approved a recommendation to seek an additional appropriation of $85 million for the current year in order to meet the "critical needs" of the trial courts. Thus, we expect that the Judicial Council will amend its October request for deficiency funding.
Some Courts Threaten to Sue Counties for Additional Funding.State law provides a procedure for trial courts to seek additional funds from counties if budgeted funds are insufficient to meet the needs of the court. In late 1995, the Los Angeles Superior Court commenced an action to compel Los Angeles County to provide additional funds. In its discussion with the county, the court has reduced its original request of $41.4 million to $26.3 million. The superior court also is requesting this same amount from the state as part of the Judicial Council's $85 million request to meet the critical needs mentioned above
According to the Judicial Council, the Orange County Superior Court has also sought funds pursuant to state law. In January, the court indicated to the Judicial Council that it is requesting an additional $31.7 million from the county in the current year.
Judicial Council Should Provide an Update.We believe that the actions of the Judicial Council and the state's two largest superior courts has significant implications for the current relationships between the courts, the state, and the counties. For this reason, we recommend that the Judicial Council report to the Legislature during budget hearings on the status of current-year funding issues.
The Governor's Budget proposes to consolidate the costs of operating the trial courts at the state level, capping the county contribution, and making the state responsible for future funding increases.The budget proposes to consolidate the costs of operations of the trial courts at the state level. The plan redefines the financial responsibility of the state and the county in relation to the operations of the trial courts. Figure 26 (see page 110) summarizes the major provisions of the plan.
County Contributions Capped.Under the proposal, the county contribution for Trial Court Funding is capped at $890 million. This amount is roughly equal to the level of funding provided by the counties in 1994-95 for support of trial court operations. This county contribution, which would not increase over time, would be deposited into the Trial Court Trust Fund and appropriated in the Budget Bill.
State Responsible for Funding Future Increases. With the county contribution capped, the state would be responsible for funding all futurecost increases for trial courts, including costs associated with salary increases, new judgeships, and implementation of new programs.
Fines and Penalties No Longer Remitted to the General Fund. Under current law, certain fines and penalties collected by the courts are remitted to the General Fund to offset the state's General Fund cost of the Trial Court Funding Program. Under the Governor's proposal,
Major Features of the Trial Court Funding
|Establishes a cap on the county contribution for trial court operations at $890 million, an amount equal to their 1994-95 contribution to the trial courts.|
|Provides that the state is responsible for funding future increases in the Trial Court Funding Program.|
|Eliminates the requirement that local fines and penalties be remitted to the state General Fund. Instead, counties would transfer $294 million in fine and penalty revenues to the Trial Court Trust Fund--the amount of fines and penalties remitted by the counties to the General Fund in 1994-95.|
|Proposes that one-third of all growth in monies collected for fines and penalties above the 1994-95 level be diverted to the Trial Court Trust Fund. The remaining two-thirds would be split between the counties and the cities.|
|Proposes an increase of court filing fees to generate an additional $91 million, which would be remitted to the Trial Court Trust Fund.|
|Eliminates costs for court facilities, local judicial benefits, and revenue collection activities from the trial court budget; these items would be fully funded by the counties.|
$294 million in fine and penalty revenue instead would go annually to the Trial CourtTrust Fund. This reflects the amount that was remitted by the counties to the state General Fund in 1994-95. Future increases in recovered fine and penalty revenue--projected at $12 million in the budget year--would be divided evenly between the counties, the cities, and the Trial Court Trust Fund.
Increases in Court Filing Fees. Court fee revenues are estimated to be $156 million in 1995-96 and are deposited into the Trial Court Trust Fund. Under the proposal, certain court filing fees would be increased to generate an additional $91 million, which would be remitted to the Trial Court Trust Fund.
The proposed fee changes include:
Redefinition of Operating Costs.The proposal eliminates the costs of facilities, local judicial benefits beyond the state-funded salary and benefits, and revenue collection activities from the trial court operational budget. These items would be fully funded by the counties.
Several Other Proposed Statutory Changes. In addition, the Governor's proposal contains the following changes as part of the consolidation plan:
The administration advises that it will seek legislation to make all of the proposed changes.
Judicial Functions Should Be Considered "Statewide" Functions.
The administration's consolidation proposal has merit. However, the Legislature will need to consider issues related to future funding and cost containment, which if not addressed, would result in significant future cost increases to the state.We concur with the administration that the state should assume primary financial responsibility for the trial courts. This is because the state has an interest in ensuring and improving statewide access to justice through the courts. The current trial court funding system can result in widely differing levels of support for the courts depending on county fiscal capacity and budget priorities.
Judicial Functions Should Be Considered "Statewide" Functions.
Current System Separates Control and Financial Responsibility. In addition, the current system of funding the trial courts creates a separation of control and funding responsibility. The Legislature and the Governor control, to a large extent, the workload and the rules governing the courts and, in some cases, the types and number of court employees. The state also controls the number of judges, which has a substantial impact on the overall costs of the courts.
This is not to say that local government officials do not affect the workload of the courts. Particularly in the area of criminal justice, the police and district attorneys exercise a certain amount of discretion in determining who to arrest and which cases to prosecute. Nevertheless, we believe that on balance, the state is the primary determinate of court workload.
Linking Funding Responsibility and Accountability. We also concur with the administration that the divided funding responsibility that currently exists for the trial courts limits the authority, and consequently, the accountability of all the parties involved. Any new system for the funding of the trial courts must provide clear accountability and increased flexibility for the management of the courts.
Budget Year Impacts and Beyond. The net impact of the consolidation on the state General Fund for the budget year is minor. However, we expect that the plan's impact on state expenditures will grow in the following years, especially if the Legislature establishes new judgeships. Based on historical experience, we estimate that the trial court operational budget could increase by $30 million to $80 million annually. The state will be solely responsible for funding this increase. In the budget year, the state's share of the proposed increase in funding is relatively small and will be covered by the increase in fees. While this option will continue to exist in the future, it is likely that future funding increases will need to be provided primarily from the General Fund.
Proposal Creates Challenges, Opportunities. Although we believe that the proposal is an important step in creating a statewide, unified judicial system, we have identified several concerns with the current consolidation proposal which the administration and the Legislature should address.
As we indicated, the proposal will likely result in significant cost increases to the state in future years. Thus, it will be important for the state to ensure that the issues of governance and control make sense in the new system, enabling the state to have greater involvement and control over trial court expenditures. We recommend that the Legislature ensure that the mechanisms for improved governance are in place to be able to control trial court expenditures and to bring about operational efficiencies. This becomes especially important if the Legislature wishes to create new trial court judgeships in the coming years, which could increase trial court operating costs substantially. We outline several issues related to cost control and governance below.
We recommend that the Judicial Council report to the Legislature during budget hearings on its progress in defining and implementing performance measures that assess progress toward meeting specific goals and permit cross-court comparisons.In linking fiscal responsibility and accountability, it will be important for the Legislature to establish performance expectations for the courts. The 1995 Budget Act directed the Judicial Council to develop specific trial court performance measures to use in developing future budget proposals. The Judicial Council indicates that its report will be available in February.
The Judicial Council and the TCBC have previously developed performance standards and minimum-service levels that it used in evaluating individual trial court budget requests. Information provided by the Council indicates that the standards consisted primarily of statewide average costs for most court functions. Specifically, each court's expenditures were compared to these statewide average costs and budget requests that deviated significantly were reduced or denied with a request for further justification.
Performance Standards Don't Measure Achievement of Goals.The purpose of performance measures is to measure progress toward meeting specific organizational goals. The purpose of the standards previously used by the courts was to provide "benchmarks" for courts to self-assess their performance. Our review indicates, however, that these standards do not constitute measures because they can not be used to assess movement toward clearly defined goals. In February 1996, the Judicial Council will be reporting on the feasibility of developing performance measures and the use of these measures in the development of the budget proposals.
Analyst's Recommendation.We believe that the use of the average cost comparisons to assist in budget development was a good first step by the TCBC. However, in the long run, we do not believe that the use of average cost comparisons is adequate for developing future trial court budgets or assessing progress of courts in meeting the goals specified by the Judicial Council and the Legislature. Accordingly, we recommend that the Judicial Council report to the Legislature during budget hearings on its progress in defining and implementing performance measures.
In order to create a statewide court system and to ensure linkages between control and financial responsibility, we recommend the enactment of legislation that, at a minimum, requires the Judicial Council to begin establishing trial court employee classifications as well as a statutory timetable to convert trial court employees to state employees in the long run.In addition to the judges, trial courts employ thousands of nonjudicial personnel (such as administrators, attorneys, and clerical staff) to operate the court system. In fact, funding for these employees is the single largest expense in the trial courts. Under the proposed consolidation, the state will be responsible for issues of funding of these personnel.
Proposal Does Not Link the Management and Funding of Court Personnel.The Governor's consolidation plan does not link management and control of court employees with funding. The absence of this link essentially allows the counties to set the state's funding priorities. For example, while the counties would continue to set salary and benefit levels for court employees, the state would fund 100 percent of any increase in these costs.
Options for Improved Governance.The Legislature will need to consider a variety of options, both long-term and short-term, in order to provide an appropriate system of governance for court employees. The options include:
In the long-term, as the state takes over primary funding for the courts, we believe that it is desirable for all court employees to become state employees in order to ensure that the funding and the management of court employees are properly linked.
We recognize that this will be a complicated undertaking with significant long-term ramifications. In the short run it will also require much work on the part of the Judicial Council, in terms of reclassifying county employees subject to state classifications and converting employees from local retirement programs to state programs. Currently, there are vast differences between the counties in terms of classifications, pay scales, and retirement systems. Nonetheless, among the things that the Legislation should consider, is a timetable for reclassification and conversion of employees to the state system over the long run.
Analyst's Recommendation.In order to create a truly statewide court system and to control cost increases for trial courts that the state will be responsible for, we recommend the enactment of legislation requiring the Judicial Council to begin establishing trial court employee classifications as well as a statutory timetable to convert trial court employees to state employees in the long run.
In order to better match funding responsibilities with program spending controls, we recommend that the Legislature eliminate the court-appointed counsel function from the Trial Court Funding Program. The consolidation proposal shifts responsibilities for certain functions between the counties and the state and further defines trial court operational costs. Under the consolidation plan, costs for facilities, local judicial benefits, and revenue collection activities are removed from trial court operational costs and are considered solely county responsibilities. Our review indicates that funding for the court-appointed counsel function should also be excluded from the trial court operational costs because under the Governor's proposal it would result in inappropriate incentives.
Court-Appointed Counsel Should Be Financial Responsibility of Counties.Counties are generally responsible for providing counsel for indigent defendants. Currently, the services of the county public defender's office are supplemented by the Court-Appointed Counsel Program in the courts. When the public defender's office is unavailable to take on cases, the court appoints counsel through this program to defend indigents. Actual statewide expenditures for this program were $42.4 million in 1994-95 and are projected to be $38 million in 1996-97.
The costs for public defenders are considered a county cost and their workloads in many ways are dependent on the actions of other local law enforcement agencies, including the district attorney. By making this a state-funded function, the consolidation proposal establishes an incentive for counties to shift costs to the state. Under the Governor's proposal, there would be few incentives for counties to continue funding the public defender's office if they know that they can pass on that office's costs to the state through increases in the Court-Appointed Counsel Program. While the state may want to continue to subsidize county responsibilities for indigent defense, the Legislature should provide another mechanism outside of trial court funding to do so.
Analyst's Recommendation. Given the above, we recommend that the Legislature eliminate the court-appointed counsel function from the Trial Court Funding Program.
Historically, revenues from court fees have fallen significantly below projected levels. Under the consolidation plan, to the extent that these revenues fall below projected levels, the state will incur increased General Fund costs.The Governor's Budget proposes to significantly change the structure of the Trial Court Trust Fund by directing that, in addition to filing fees, all county and state General Fund contributions for trial court functions be deposited in and appropriated from the trust fund.
Fee revenues in the trust fund are derived from services provided to the public by the court (such as filing fees and court reporter fees). As a result, there is a connection between the cost of the service and the revenues remitted to the state for support of trial court operations. As we indicated above, the consolidation plan proposes to establish and increase certain fees in the budget year that would increase revenues by a projected $91 million, or 42 percent.
Revenues Fall Short of Projections.Historically, revenues remitted to the fund have not met projected amounts, which reflects a general pattern of overestimating revenues. In 1992-93, the projections were about 18 percent higher than actual remittances and the 1993-94 projections were 16 percent higher that actuals. The 1995 Budget Act projects $156 million in revenues from fees. Data from the State Controller shows that through December 1995, remittances are 17 percent lower than the same period in 1994-95.
Potential General Fund Impact.Since county contributions are capped under the consolidation proposal, any shortfalls in fee revenues for the trust fund may have to be made up by increased appropriations from the state's General Fund. Thus, if the revenue projections for these fees do not meet expectations, or the necessary legislation for the fee increases does not pass, additional funds from the General Fund will be needed to support the trial courts.
We recommend a General Fund reduction of $2 million proposed for 20 new judgeships because the positions have not been justified on a workload basis. However, if the Legislature decides to establish new judgeships in separate legislation, we recommend that it limit the judgeships only to those courts that have fully coordinated or consolidated their operations.The budget proposes $2 million to support 20 new trial court judgeships beginning in the last quarter of 1996-97. The requested amount would pay for the salaries and benefits of judgeships, as well as the related support staff and operating expenses and equipment. Annual funding for the following years will be about $8 million. Separate legislation is required to establish the judgeships.
In June 1995, the Judicial Council released a report on the judgeship needs of the trial courts and recommended that 61 new judgeship positions be established. The report ranked the 61 judgeships positions by court, based on the severity of need. The budget proposes to fund the first 20 judgeships on the list. Figure 27 shows the courts in which the new judgeships would be established.
As the figure shows, two judgeships would be established in each of three courts (Solano Superior, San Bernardino Consolidated, and Orange Superior), and one judge would be established in each of the other courts. The figure actually shows 21 judgeships because the Judicial Council's report showed a tie for the twentieth-ranked position. The Judicial Council has not indicated in which of these two courts it proposes to establish the twentieth judgeship.
Judgeship Needs Determined by "Qualitative" Rather Than Quantitative Data. The Judicial Council originally intended to develop a simulation model based on quantitative data from the individual courts in order to determine which courts were in need of new judgeships. Due to limitations in the available data, the Judicial Council advises that it decided not to use the simulation model, and instead based its recommendations on "qualitative reports" submitted by the courts and statistical information reported to the Council. The primary sources of information that were reviewed included: (1) five-year case filing trend reports, (2) the number of existing judicial positions, (3) the extent of judicial coordination among courts in the county, and (4) the extent of temporary judicial positions in the court.
Our review indicates that the proposal is not justified on a workload basis for several reasons.
|Proposed New Judgeships|
|1||North Kern Municipal|
|1||South Kern Municipal|
|3||Santa Maria Municipal (Santa Barbara County)|
|10||San Bernardino Consolidated+++b@@@|
|11||Citrus Municipal (Los Angeles County)|
|14||Contra Costa Superior|
|17||San Bernardino Consolidated+++b@@@|
|20||Orange Superior+++a@@@ b|
|20||San Joaquin Superior+++a@@@|
|+++a@@@ As determined by Judicial Council's 1995 Report on Statewide Judgeship Needs.|
|+++b@@@ One of two judgeships proposed for this court.|
Request for New Judgeships Does Not Consider Workload Impacts of Other Budget Proposals.Our review indicates the proposal does not take into account two other budget proposals that will provide additional judicial resources and relieve workload in the trial courts, thus eliminating the need for new positions.
First, the budget proposes a new program that would establish 50 new court commissioner positions dedicated specifically to the establishment of child support paternity and support orders. Funding for this proposal--$19 million--is included in the Judicial budget (discussed in this chapter).
Second, the proposal does not account for the 51 percent increase proposed for the Assigned Judges Program, which includes the addition of 30 retired judges to form a "Three Strikes Relief Team." These judges would be specially trained and assigned to courts across the state to help courts handle second- and third-strike cases.
Proposal Not Adequately Tied to Coordination.Current law requires trial courts to implement various efficiency procedures in order to maximize the use of judicial resources. These procedures include cross-assignment of judges between municipal and superior courts in order to hear any type of case, use of subordinate judicial officers to try matters, and merging court support staff within a county. Our review indicates that most of the judgeships are proposed for courts that have not coordinated or consolidated their operations to the fullest possible extent. If they had done so, their need for additional judgeships would probably diminish. (We discuss the state of court coordination in greater detail above.)
Proposal Does Not Consider Transferring Positions From Other Courts. Finally, we believe that the proposal does not account for judgeships in courts throughout the state that may not have sufficient workload to justify their current number of judicial positions. We believe that it may be possible, whenever positions become vacant, to permanently transfer positions from courts with insufficient workload to those where the needs are greatest, thus increasing the efficiency and reducing the costs of the trial court system.
Analyst's Recommendation.Based on the above, we believe that the request for 20 additional judgeships should not be approved at this time. We recommend that the Legislature direct the Judicial Council to rework the judgeship needs model to account for the proposed increases in assigned judges and commissioners, fully account for the impacts of court consolidation and coordination, and consider transferring judgeships in courts where workload does not support the current number of positions whenever the positions become vacant.
Should the Legislature decide that it wishes to establish some number of additional judgeships in separate legislation, however, we recommend that none be established in courts that have not fully consolidated or coordinated their operations.
The proposed budget does not contain a formula for allocating funds to the trial courts. We recommend adoption of Budget Bill language directing the Trial Court Budget Commission and the Judicial Council to implement an allocation formula which includes incentives for trial courts to implement efficiencies and cost containment measures.The Judicial Council has the authority to distribute state funds to local trial courts. In the proposed budget, local funds provided by the counties would be transferred to the Trial Court Trust Fund for allocation by the TCBC, subject to approval of the Judicial Council. The Governor's Budget does not contain a distribution formula. Thus, it is uncertain how the funds will be distributed to the various trial courts.
Judicial Council Must Rework Distribution Formula.The Judicial Council and the TCBC allocate state funding to the courts. The current methodology used by the TCBC and the Judicial Council distributes the funds based roughly on the same percentage received in the prior year. In allocating funds, the Judicial Council does not account for issues of critical need, operational efficiency, or incentives for cost containment.
The budget proposes that the TCBC be responsible for distributing allfunds appropriated by the legislation to the Trial Court Trust Fund in the Budget Bill. The Legislature and the Judicial Council should take steps to ensure that the TCBC has the authority to distribute all funds (including the county contribution portion) as it deems necessary.
Incentives Needed to Ensure Efficiency and Cost Containment.As we indicated earlier, a wide disparity exists among individual courts with regard to implementation of efficiency and cost containment measures. In our view, the best way to achieve implementation of efficiencies is to establish a system of incentives to reward courts that implement efficiencies, and create disincentives for trial courts that have not adopted efficiencies. Such a system of incentives could be implemented through the TCBC and the Judicial Council's allocation of funds from the Trial Court Trust Fund. For example, the Council could allocate funds based on performance criteria, or could provide additional funds so that courts could establish automated accounting and case tracking system. Conversely, the Legislature could direct the Judicial Council to withhold expenditures for the Assigned Judges Program in courts that do not coordinate judicial calendars or cross-assign judges, or not increase jury administrative allocations for trial courts that do not have coordinated jury selection procedures.
In our view, using an incentive system to control costs will become even more important in future years when, if the Governor's consolidation proposal is adopted, the state's costs for support of trial courts will increase substantially.
Analyst's Recommendation.In order to assure that efficiencies and cost containment measures are fully implemented by the trial courts, we recommend that the Legislature amend the proposed Budget Bill language in Item 0450-101-0932 (Provision 1) by adding:
The Trial Court Budget Commission and the Judicial Council shall implement allocation criteria that include incentives for courts to implement court efficiency measures. The council shall advise the Legislature by October 1, 1996, on how it has incorporated the incentives for efficiencies into its allocation criteria.
Proposition 190, approved by the voters in the November 1994 general election, significantly changed the operations of the Commission on Judicial Performance and required that the commission's budget be separate from the budget of any other state agency or court. Consequently, the budget for the commission, previously included in Budget Bill Item 0250, is now separately appropriated in Item 0280.
Proposed Budget.The judicial budget includes support for the Supreme Court, the courts of appeal, and the Judicial Council. The budget proposes total appropriations of $198 million for support of these judicial functions in 1996-97. This is an increase of $29.6 million, or 18 percent, above estimated current-year expenditures. Total General Fund expenditures are proposed at $178 million, an increase of $10 million, or 6 percent.
The increase in the Judicial budget is primarily due to requests for (1) a new child support enforcement court program ($19 million in reimbursements from the Department of Social Services), (2) caseload and rate increases for court-appointed counsel services ($6.3 million from the General Fund), (3) higher costs for operation of judicial facilities ($2.2 million), (4) salary increases for employees ($1.7 million), and (5) new appellate judgeships ($1.2 million). We discuss some of these proposals below.
We recommend that the number of proposed new appellate court justices be reduced from five to three based on projected workload. We further recommend the enactment of Budget Bill language making the funds appropriated for the three appellate court justice positions contingent upon enactment of legislation to create the positions. (Reduce Item 0250-001-0001 by $498,000.)The budget proposes an increase of $1.2 million from the General Fund to support five new appellate court justices and related support staff, beginning January 1997. Specifically, the proposal requests $512,000 for salaries and benefits for the five new appellate justices, and $735,000 for ten research attorneys and five secretaries to support the justices. (This staffing complement of research attorneys and secretaries is consistent with the existing courts of appeal staffing standards when adding justice positions.) The annual full-year General Fund cost for the proposal would be about $2 million.
Enactment of legislation is required to establish the new justice positions. The budget assumes that one additional justice will be established in each of the following courts of appeal:
These new justices would raise the total number of statewide appellate justices to 93. The number of appellate court justices was last increased in 1987, from 77 to 88.
Judicial Counsel Working Group Recommends Three Additional Appellate Court Justices.In January 1995, the Judicial Council released its "Appellate Court Resources Analysis" which examined the need for additional judicial positions in the appellate courts. The report reviewed the workload in the appellate court system and concluded that there was a need for three additional justices in the courts of appeal. It recommended that three new positions be created, one each in Santa Ana, Los Angeles, and Ventura.
Legislation (SB 874, Calderon; and AB 1818, W. Brown) was introduced to authorize the three additional appellate court justices recommended by the Judicial Council. Senate Bill 874 is currently on the Assembly Inactive File and AB 1818 is in the Senate Appropriations Committee.
Insufficient Justification for Two Additional Justices.The Judicial Council's 1995 analysis did not recommend new justices for the Fourth District courts in San Bernardino or San Diego. In addition, our analysis of the workload in the Fourth District courts indicates that the two additional justices are not justified. Although the number of appeals cases being reviewed in the San Diego court increased during 1994-95, it appears that the increase was primarily in certain types of appeals which require substantially less work than other appeals. The additional justice requested for San Bernardino would bring the ratio of justices-to-cases below the level recommended by the appellate working group. In addition, the San Bernardino court also has the assistance of a senior judge whose position was not reflected in the workload calculations.
Analyst's Recommendation.Based on the above findings, we recommend the enactment of legislation that establishes three, not five, new appellate justices. This would reduce the budget request to $748,000, for a General Fund savings of $498,000.
In addition, we believe that the Legislature should adopt Budget Bill language to ensure that the funds appropriated in the budget for justice positions are not spent unless the legislation is ultimately enacted to establish them. This would prevent the Judicial Council from using the funds for other, unbudgeted purposes.
Specifically, we recommend the adoption of the following Budget Bill language:
Funds included in this item for support of new appellate court justices and support staff shall only be available if legislation is enacted to establish the new justice positions, and funds not used for this specific purpose shall revert to the General Fund.
We recommend a General Fund reduction of $700,000 for court security in the appellate courts because the requested amount is not justified on a workload basis. (Reduce Item 0250-001-0001 by $700,000.)Currently, the California Highway Patrol (CHP) provides uniformed officers to attend oral argument sessions in the courts of appeal. The CHP also provides general security services for all state buildings and occupants, including the courts. The courts supplement this level of security by contracting with a private security firm that provides unarmed security for all nine court facilities statewide.
Budget Proposal.The budget requests $2.6 million from the General Fund in 1996-97 for security services in the Judicial Branch. This is an increase of $700,000, or 35 percent, above estimated current-year expenditures for court security. The additional funds would allow the CHP to set up a Bureau of Court Security and provide a uniformed officer to oversee security functions at each appellate location during
operational hours. The proposal would support 20 positions and five vehicles to perform and supervise security at the nine appellate courts.
Proposed Increase in Court Security Not Justified.Our review indicates that the proposed increase is not justified on a workload basis. For example, there have been no indications of security problems in the appellate courts, according to the Judicial Council. The council indicates that there have been no reports of security incidents or threats at any courts of appeal facility in at least the last three years. In addition to the CHP providing general security to the court facilities and the security during oral arguments, a private security contract also provides for 37.5 security personnel at courts of appeal facilities statewide. Furthermore, the courts of appeal currently have electronic key-card access, video surveillance, and weapons detection capabilities to augment their security needs.
Based on the above factors, we recommend that the amount proposed for court security be reduced by $700,000.
We recommend a General Fund reduction of $1.2 million requested for relocation of court staff because the funds will not be needed. (Reduce Item 0250-001-0001 by $1.2 million).The budget requests $1.2 million from the General Fund for the costs of relocating appellate court staff currently housed in the Library and Courts Building in Sacramento. The Judicial Council indicates that the relocation is necessary in order to seismically retrofit the building in the budget year. However, according to the State Architect, the current retrofit plan will not require the court to relocate. This is because the current plans are to retrofit the library portion of the building which should not affect the areas of the building where the courts and personnel are located. For this reason, we recommend that funds for the relocation be deleted.
We withhold recommendation on the proposed increase of $6.3 million for the Court-Appointed Counsel Program, pending receipt and analysis of more updated data on caseload and expenditure trends in the program.
The Court-Appointed Counsel Program uses private attorneys working under supervision of five regional appellate projects. The projects are nonprofit organizations that provide appellate defense services for indigent persons. These projects recruit attorneys to take on cases, supervise and train attorneys that are handling cases, and process reimbursement claims that the attorneys submit.
The budget proposes $52.7 million from the General Fund for the Court-Appointed Counsel Program in 1996-97 consisting of the Supreme Court ($6.8 million) and the courts of appeal ($45.9 million). A deficiency augmentation of $4.5 million (13 percent over baseline) was authorized for the courts of appeals portion of the program in the current year due to unanticipated increases in workload. The budget proposes to continue that funding level into the budget year and requests an additional $6.3 million, or 13 percent, for the appointed counsel program.
The Program's Budget Has Been Growing Significantly. Since 1993-94, expenditures for the Court-Appointed Counsel Program have increased 37 percent, as shown in Figure 28. This program now accounts for 30 percent of the General Fund dollars for the Judicial Branch budget. The primary reason for the growth has been the increases in the number of appeals filed, combined with the increasing complexity of those cases.
Courts of Appeal Caseload Model Recently Revised.In recent years, projected and actual expenditures for the program have fluctuated widely, primarily because the projections were not able to account for the increasing complexity of the cases entering the system. These problems led to the current-year deficiency of $4.5 million.
The Judicial Council recently revised its caseload model to more accurately project workload for court-appointed counsel in the courts of appeal. The Judicial Council now uses the number and the size of reimbursement claims filed by attorneys to project workload and fiscal impact.
The reimbursement claim data used for this model has been collected since January 1994. As a result, there is still only limited information with which to project workload trends using the new model, or to test its reliability for projecting expenditures over time. The budget request is based on actual expenditures through June 1995. Additional information comparing projected and actual expenditures would help assess the reliability of the model.
In addition, the Judicial Council has not developed a model that can project caseload growth in court-appointed counsel for the Supreme Court, or that can link the caseload growth with anticipated expenditures. No caseload projections have been made for the budget year for this program, and estimated current-year expenditures are 31 percent higher than for the past year.
Analyst's Recommendation.Given the significant increase in expenditures requested for the Court-Appointed Counsel Program, we believe that the Judicial Council should provide more updated data (through at least December 1995) before the Legislature appropriates funds for the program. At the same time, the council should develop a model to project caseload and expenditure growth for court-appointed counsel services provided to the Supreme Court. For these reasons, we withhold recommendation on $6.2 million requested for the program, pending receipt and analysis of the additional information.
We recommend that the Judicial Council, in conjunction with the State Public Defender, report during budget hearings on the efforts to improve the number and timeliness of appointments of counsel for inmates on death row, including the council's recent efforts designed to increase appointments.The state's death penalty law requires that an inmate's case be automatically appealed to the Supreme Court after the trial court renders a judgment. For inmates who cannot afford an attorney, the Supreme Court appoints either a private attorney through the Court-Appointed Counsel Program or the State Public Defender (SPD) to represent the inmate.
The Supreme Court has come to rely on the Court-Appointed Counsel Program to represent most of the inmates on death row. About 95 private attorneys are currently serving as court-appointed counsel in 110 appeals cases before the court. On the other hand, the SPD has taken only ten new capital appeals cases in the past two years and is currently handling 41 cases (this is due in large part to budget reductions experienced by the SPD, totaling about 15 percent since 1990-91).
Major Backlog of Death Penalty Cases Without Attorneys.Our review indicates that there is a significant backlog of capital punishment cases in which no counsel has been appointed. As of December 1995, 128 inmates, or 48 percent of all inmates on death row that have an automatic appeal of their sentences pending before the Supreme Court, were awaiting appointment of counsel. According to the Judicial Council, three to four years often elapse after a death penalty judgment is rendered in the trial courts before counsel are appointed to appeal an inmate's sentence. Currently, appointments are being made in cases where the judgement of death was rendered in 1992. This delay in appointing counsel is due in part to the lack of private attorneys who are willing and qualified to accept such cases and the limited resources of the SPD.
Steps Taken to Attract More Attorneys Unclear.The Judicial Council and the Legislature have taken steps to attract more private attorneys to accept capital appeal appointments. In 1995-96 the rate paid to attorneys performing services in capital cases was increased from $75 to $95 per hour. Our review indicates that it is too early to assess the impact of this hourly pay increase on increasing the number of appointments.
Also, in January 1994, appointed counsels were given the option of receiving payments based on either an hourly rate or a fixed amount depending on the length of the case record and complexity of the case. The Judicial Council reports that it will examine this new payment method in 1996-97 and the findings will be used to make recommendations for the 1997-98 budget. Analysis of the impacts of the changes will be important in determining a method to reduce the backlog of cases.
No Plan for Addressing Backlog in the Budget. The budget proposes for 1996-97 an increase of $354,000 to fund caseload growth and increased costs of court-appointed counsel in the Supreme Court. This amount assumes that the caseload growth will be about 4 percent, or about two private attorney appointments per month. However, the number of inmates with automatic death penalty appeals has been increasing at a rate of about three per month. If this rate of increase continues in the budget year, the backlog of inmates on death row without attorneys is likely to worsen.
The large number of inmates on death row who are awaiting appointment of counsel raises questions about both the effectiveness of the Court-Appointed Counsel Program and the process by which the state provides legal representation for indigent criminal defendants. Without an attorney, an inmate's appeal to the Supreme Court--which is required under the state's death penalty law--cannot go forward. Such delays place serious burdens on many parties--the inmates, the families of victims, the Attorney General (who handles the appeal for the state), and the law enforcement and criminal justice officials who prosecuted the original case. Although there are probably numerous reasons for the backlog of appointments, the budget contains no proposal or strategy to reduce the backlog.
Analyst's Recommendation. We recommend that the Judicial Council, in conjunction with the SPD, report during budget hearings on efforts to improve the appointment of counsel for inmates on death row and reduce the backlog of cases without counsel. The report should include the council's analysis of the impacts of recent changes designed to increase appointments.
We recommend that the Legislature adopt supplemental report language directing the Judicial Council to develop a system for ensuring consistency in the rankings for attorneys and cases handled by the appellate projects.As we indicated earlier, five regional appellate projects provide counsel for noncapital cases, in the courts of appeal. These appellate projects have several functions: (1) appointing private attorneys to perform the actual representation, (2) ensuring adequacy of representation by providing training and assistance, and (3) handling compensation claims. Private attorneys who are assigned to noncapital cases are chosen from a "panel" of attorneys who have made themselves available for appellate work.
Measures Taken to Retain More Experienced Appellate Counsel on the Panels.Recognizing that the program lacked experienced attorneys, the Legislature increased funding for the Court-Appointed Counsel Program in the 1995 Budget Act in order to make the pay more attractive for attorneys. With the additional funding, the appellate projects increased the hourly rate from $65 to $75 paid to attorneys assigned on an independent basis and who handle appeals of murder cases and life imprisonment without parole cases. Our review indicates that it is too early to assess the effectiveness of the pay increase in retaining experienced counsel.
Budget Requests Funds to Expand Higher Rates to More Attorneys. The budget requests $971,000 to further expand the types of cases in which the $75 per hour rate would be paid. Specifically, the new rate would apply to all jury cases (not just murder and life without parole cases) with records in excess of 1,000 pages which are assigned on an independent basis. The Judicial Council's Appellate Indigent Defense Oversight Advisory Committee will make recommendations in early 1996 as to expanding the categories for the higher pay rate. It is not known at this time what criteria the committee will recommend for increasing the pay scale.
No Consistent System of Rankings Exists.The projects use two sets of rankings to manage their attorneys and caseloads. One set of rankings relates to the attorneys themselves. The other set relates to the complexity of individual cases.
The attorneys are ranked by experience on a scale of 1 to 5, with the 4 and 5 rankings assigned to the most experienced counsels, who are able to accept appointments on an "independent" basis with little supervision. While there are approximately 1,600 panel attorneys statewide, only 135 of these attorneys are considered the most experienced counsels (ranks 4 or 5). In addition to ranking attorneys, each appellate project ranks cases based on complexity on a scale of 1 to 4. Both the rankings of attorneys and cases are not based on similar standards, however, but rather on individual assessments by each project. The standards used by the projects to rank attorneys and cases varies. Attorneys may have a ranking of 3 in one project but a 4 in another, and similarly a case may get a ranking of 4 in one project but may have been assessed as a 3 in another project.
Statewide Consistency in Rankings Would Be Useful.Our review indicates that more consistency in assessing attorney qualifications and case complexity would be useful to the Judicial Council in administering the appointed counsel program. First, a more consistent application of the standards for assessing attorney qualifications will make it easier for attorneys to seek appointments from more than one appellate project. With more consistent rankings, attorneys can take cases from different projects and help ensure that more attorneys are available to take cases.
Second, consistency will allow the Judicial Council to better assess the quality of the recruitment and training functions performed by each of the projects, thereby permitting better comparisons of the performance of the five projects. For these reasons, we recommend the adoption of the following language:
The Judicial Council shall develop consistency standards for measuring the experience and qualifications of private attorneys handling indigent defense appeals, and for measuring the complexity of cases received by the Court-Appointed Counsel Program. The council shall also use the standards and rankings to develop an incentive system to retain experienced attorneys in the program. The council shall report to the Legislature's fiscal committees by January 1, 1997 regarding the implementation of the standards and the incentive system.
We withhold recommendation on the $19 million in reimbursements from the Department of Social Services for support of a new child support enforcement system, pending receipt of additional information in an implementation plan.The budget proposes $19 million in reimbursements from the Department of Social Services (DSS) for implementation of a new child support enforcement system in the state's trial courts. Under the new system, court commissions would be dedicated specifically to the establishment of child support paternity and support orders. The proposal assumes enactment of pending legislation (AB 1058, Speier). The reimbursements would support 50 new court commissioners and five administrative positions, beginning January 1, 1997.
In our analysis of the DSS (please see the Health and Welfare chapter of this Analysis), we note that the administration has not provided sufficient information to justify the need for 50 commissioners in 1996-97. Therefore, we withhold recommendation on the funds requested in the DSS budget pending further justification from the department and the Judicial Council. Accordingly, we withhold recommendation on the requested reimbursements in the Judicial budget as well. We withhold recommendation pending receipt of an implementation plan that shows (1) when each county will make the transition to the commissioner-based system and (2) the number of commissioners needed in each county or group of counties.
The budget proposes total expenditures of $374 million for support of the DOJ in the budget year. This amount is $4.9 million, or 1.3 percent, more than estimated current-year expenditures. The requested amount includes $212 million (an increase of $12.8 million, or 6.4 percent) from the General Fund, $59.7 million from special funds, $16.7 million from federal funds, and $85.8 million from reimbursements. In the legal divisions, the budget proposes funding increases for the Criminal Law Division ($6.4 million), and the Civil Law Division ($2 million). The budget also proposes a net increase of $852,000 for the Division of Law Enforcement (DLE), as well as decreases totaling $4.3 million in other programs.
The budget proposes $3.3 million from the General Fund to fund salary increases granted to state employees in January 1995. Most other state agencies were required to absorb these costs. The Legislature denied a similar request from the Department of Justice in enacting the 1995 Budget Act.The Governor's Budget requires most General Fund departments to absorb the costs in 1996-97 of the last general salary increases (GSI) granted to state employees on January 1, 1995. Consistent with actions taken by the Legislature in the 1995 and 1996 Budget Acts, the budget provides augmentations to fund the GSI for specified law enforcement agencies, departments that provide 24-hour care services, and revenue-producing agencies. However, the budget makes an exception by proposing $3.3 million from the General Fund to cover the costs of the GSI in all DOJ divisions, including the non-law enforcement divisions.
The DOJ Holds Positions Vacant. Effective January 1, 1995, the DOJ advises that it implemented an 18-month internal hiring freeze to offset the impact of the GSI. The department estimates that without funding in the budget year, it will have to continue to hold positions vacant in order to generate funds to cover the costs of the GSI.
Legislature Deleted Funds in 1995 Budget Act.The budgets's proposal to fund the DOJ's GSI costs is inconsistent with actions previously taken by the Legislature. The 1995-96 Governor's Budget proposed $5.8 million ($3.3 million from the General Fund) to cover the costs of the GSI for all DOJ divisions. Subsequently, these funds were deleted by the Legislature in the 1995 Budget Act.
State An Active Litigant.
The state's legal costs for the operation of its correctional system are now projected to be about $35 million in the budget year, primarily driven upward in recent years by a wave of lawsuits filed by inmates and employees of the Department of Corrections. The Department of Corrections (CDC), which oversees the state prison system, with 135,000 inmates and 38,500 employees, is one of the most active litigants among state departments. During 1994-95, inmates filed 907 civil rights lawsuits and departmental employees filed another 80 cases relating to discrimination and other claims. Additional legal work includes responding to class-action cases filed by inmates and disputes with state contractors who provide services to the department. The responsibility for defending the state correctional system is shared primarily by three parties--the CDC, the DOJ, and private attorneys under state contract. The DOJ also represents the Youth Authority, the Board of Prison Terms, and the Youthful Offender Parole Board.
State An Active Litigant.
Correctional Legal Costs Significant.State expenditures for correctional legal costs, along with the payments for settlements and judgments, are significant and are projected to go higher, as shown in Figure 29. The combined cost of legal representation and payments of settlements and judgments was about $30 million in 1994-95. By 1996-97, these costs are projected to be $35 million, an increase of more than 14 percent in two years.
These figures do not include the administrative costs to the courts for prison-related litigation, which are funded jointly by the state and county governments. Additionally, these figures mostly represent the costs to the CDC and the DOJ for CDC-related suits, which are more significant than for the other agencies of the correctional system.
Costs to Defend State Against Correctional Lawsuits
1994-95 Through 1996-97
(Dollars in Millions)
|Estimated 1995-96||Proposed 1996-97|
|Department||Amount 1996-97||Percent Change from 1994-95|
|Legal Affairs Division||$2.1||$2.7||$3.0||40.9%|
|Settlements and judgments||8.2||8.0||8.5||3.2|
|Correctional Law Section||$8.4||$9.6||$11.4||35.0%|
|Tort and Condemnation Section+++b@@@||0.9||0.9||0.9||--|
|+++a@@@ Does not include costs related to employee lawsuits.|
|+++b@@@ Costs for inmate tort cases.|
|Note: Details may not add to totals due to rounding.|
Why Are Legal Costs Rising?One factor for the increase in legal costs is that over time, the number of suits being filed has grown significantly. The number of suits filed by prison inmates increased from 207 in 1986-87 to 907 in 1994-95. Information provided to our office suggests that the number of employee discrimination suits filed by CDC employees has increased from 27 in 1993-94 to 83 in 1994-95. As the number of cases grows, the costs of defending the state increases as well. For example, expenditures for the Correctional Law Section of the DOJ increased by 42 percent between 1992-93 and 1994-95.
Another factor in the rising legal costs has been the increase in costs for judgments and settlements against the state. The CDC has projected that the cost of judgments and settlements in the current year will be $8 million. However, these figures may be understated, given the trend thus far in 1995-96. Little more than halfway through the fiscal year, more than $6.2 million in payments have been made to satisfy court orders or legal settlements. The CDC projects that the costs of judgments and settlements will increase to $8.5 million in 1996-97.
We recommend that the Department of Justice and the Department of Corrections report to the Legislature during budget hearings regarding (1) the implementation and effectiveness of the $3 inmate filing fee and "vexatious" litigant laws, and (2) other recommendations for reducing the costs of inmate lawsuits against the state.The Legislature and the Governor have enacted legislation designed to help control the costs of lawsuits filed by inmates against the state. Our review found that the implementation and effectiveness of these steps is unclear.
A $3 Filing Fee Not Fully Implemented.Chapter 555, Statutes of 1994 (SB 1260, Presley) required that a $3 filing fee be collected by the CDC from inmates initiating civil lawsuits. Although the fee is relatively small, advocates of the fee believe that it could have a significant deterrent effect on inmate litigation. So far, however, the CDC has been unable to provide data on the number of inmates who have paid the fee, how much money is being collected, and its impact on the number of inmate lawsuits. Also, we have been advised that the fee is only being applied to inmates filing lawsuits in state courts and not those filing lawsuits in the federal courts. However, only about 10 percent of the total number of inmate lawsuits are filed in state court, and the other 90 percent are filed in federal court.
Only One Inmate Deemed "Vexatious."California law allows courts to declare as "vexatious litigants" persons who are deemed to have filed frivolous lawsuits and unmeritorious actions in state courts to be declared as "vexatious litigants." Persons found to be vexatious litigants must obtain approval from a judge before filing suits. Because some inmates file many frivolous and unmeritorious actions, implementation of the vexatious litigant statute against these inmates might result in significant savings in state litigation costs. However, it is not clear to what extent this option is being pursued by the CDC and the DOJ. During 1994-95, only one inmate was deemed a vexatious litigant. So far in the current year, no inmates have been named as vexatious litigants.
Analyst's Recommendation.Although the $3 filing fee and the vexatious litigant laws were enacted to help contain increasing state legal costs, it is unclear whether they have been fully implemented or achieved the desired results. Accordingly, we recommend that the DOJ and the CDC report at the budget hearings regarding the implementation and the effectiveness of the filing fee and the vexatious litigant laws.
In addition, we believe that the two departments may have additional ideas as to how to improve the state's effectiveness at reducing the costs of inmate lawsuits. We recommend that the DOJ and the CDC report on these recommendations as well.
We withhold recommendation on $620,000 from the General Fund, and 7.9 positions for the Correctional Law Section, pending receipt of updated caseload projections in the May Revision.The budget requests an additional $620,000 from the General Fund and 7.9 positions for the department's Correctional Law Section within the Criminal Law Division for workload increases for civil lawsuits brought against the state by prison inmates (non-class-action cases). The request assumes increased workload resulting from growth in the state's prison population during the budget year. The DOJ projects for the budget year that the section will handle an additional 191 lawsuits (over actual 1994-95), based on projections of increased inmate population.
Information provided by the CDC indicates that the inmate population is not increasing as projected last fall. The CDC will update its inmate population projections this spring.
Given that the DOJ's request is based on the projected growth in the CDC's inmate population, we withhold recommendation on the DOJ's request pending receipt of updated CDC population projections during the May Revision.
We recommend a General Fund reduction of $288,000 and a corresponding increase in reimbursements for discovery workload for the Correctional Law Section because funds for this workload should be provided by the Department of Corrections. (Reduce Item 0820-001-0001 by $288,000 and increase reimbursements by the same amount.)The budget requests $288,000 from the General Fund and 3.3 positions to handle discovery litigation and representation on behalf of the CDC.
Discovery Workload to Be Transferred to the DOJ.The CDC and correctional personnel are regularly served with subpoenas that require the production of records or attendance in court. Legal representation of the subpoenaed parties in these discovery matters is necessary in order to protect against disclosure of security-sensitive information. The CDC is currently handling these cases through in-house counsel or occasional referrals to outside counsel. The budget assumes that the entire workload of 35 cases per month will be transferred to the DOJ in 1996-97. The DOJ reports that the CDC does not have adequate administrative and clerical support to provide for this litigation function, and is experiencing difficulty with self-representation in this area.
The DOJ Requests General Fund Allocation.The DOJ is requesting a General Fund appropriation of $288,000 for this increased workload because the CDC maintains that it does not have funds specifically allocated in its budget for this function. We recommend that the proposed appropriation be deleted. By relinquishing the discovery workload, the CDC will realize savings which it should use to reimburse the DOJ for its increased costs of assuming the discovery workload. We would note that the CDC has been allocating staff and resources to handle this function out of its current budget. Furthermore, the CDC can identify the number of such cases handled by house counsel and the number of personnel hours required to perform this function.
Analyst's Recommendation.For these reasons, we recommend that the Legislature delete the requested funds and require the DOJ to negotiate an inter-agency agreement with the CDC to obtain reimbursement for this workload transfer.
We recommend that the Department of Justice report to the Legislature during budget hearings on: (1) the status of the backlog in the conviction history files within the Criminal History System; (2) the status of backlogs in processing Department of Corrections' inmate fingerprints; and, (3) the proposed redirections to reduce the backlog in the current and budget years. We further recommend that the Legislature adopt supplemental report language directing the department to report on December 31, 1996 on the status of the backlogs.Under current law, the DOJ is required to maintain a number of criminal justice information systems for law enforcement agencies. The DOJ's Bureau of Criminal Identification and Information (BCI&I) processes a variety of documents from local law enforcement agencies, the courts, and the California Department of Corrections, which form the basis for these information systems. The BCI&I maintains the Criminal History System (CHS), which contains two information files: arrests and convictions. The arrest file lists the specific offenses for which an individual has been arrested; the conviction file lists all offenses for which an individual has been convicted.
In addition, the BCI&I receives, examines, and stores fingerprints in one of the largest automated fingerprint systems in the world. The BCI&I fingerprint system (known as CAL-ID) stores fingerprint data on all persons who have been convicted of a crime in California. The system is used for criminal investigations and for establishing whether arrestees, CDC inmates, or applicants for jobs (such as teachers and child care workers) have criminal records.
Previous Backlogs of Conviction Files. In last year's Analysis,we reported that the DOJ had significant backlogs in its conviction file which exceeded one year. In other words, at that time, it took more than one year from the date of conviction before the information was entered into the conviction file and was available for use by law enforcement agencies. The DOJ redirected staff and other resources to address this backlog. The DOJ indicated that its goal was to ensure that the backlog of criminal conviction histories was reduced to 30 days by January 1, 1996.
Conviction File Backlog Worsens.While the BCI&I has taken a series of steps to reduce the inventory of documents awaiting entry into the appropriate files, the BCI&I reports that the backlog in its processing of conviction histories and has increased to 18 months. The BCI&I reports that, in January 1996, more than 1.2 million convictions remained unrecorded--almost 130,000 of these documents were for individuals convicted of felonies or crimes where a firearm was used. The BCI&I reports that it will not reduce this backlog to its goal of 30 days until June 30, 1997, the end of the budget year. The department points out that the backlog has been exacerbated by the fact that criminal documents increased 24 percent during the period July through December 1995 compared to the same period in 1994.
As we reported in last year's Analysis, the backlog of conviction histories could be detrimental to implementing the "Three Strikes" law, especially the ability of prosecutors to obtain accurate information on the background of an offender before charging a second- or third-strike. In addition, jail administrators need to have accurate data on offenders' prior convictions when deciding what level of security is needed in housing the offender. For example, an arrestee might be booked into jail for a nonserious, nonviolent offense, but this offense might be the offender's third-strike, which could result in a sentence of 25 years to life. In this instance, the offender generally needs much higher security and could pose a risk to jail staff if not properly housed.
Actions to Reduce the Impact of Conviction File Backlogs. The BCI&I recognizes the importance of timely information on individuals convicted of felonies or firearm-related offenses. Consequently, it has concentrated its efforts on identifying these records and processing them first. The BCI&I projects that the number of documents awaiting processing in June 1996 will total almost one million records, down 27 percent over a six-month period. Within this total, the number of documents for felony and firearm convictions is expected to decrease by 57 percent, over the same period. Even with this decline, however, a four to five month backlog for these records will remain. The BCI&I projects that it will reach a 30-day turnaround time for these records by June 1997.
Backlogs of CDC Fingerprints. The department also has had a significant backlog of fingerprints to process. The BCI&I reports that it has reduced its backlog for processing CDC inmate fingerprints from three years in November 1995 to two years in January 1996. Nevertheless, since the average amount of time served by CDC inmates is 17 months, a two-year backlog means that the CDC gets information for many inmates after they have been released. Fingerprint checks of inmates ensure that the inmate's identity and criminal history are verified. Verifying an inmate's criminal history could be an important element for determining the security classification of the inmate. The BCI&I projects it will reach a 30-day turnaround for processing inmate fingerprint records by June 1997.
Analyst's Recommendation. Based on our review, we conclude that the DOJ is better targeting its resources to reduce criminal history backlogs, especially for felonies and firearm-related crimes. However, we believe that the department needs to ensure that it continues its efforts to reduce criminal history and fingerprint backlogs. Given the importance of this issue, we believe the DOJ should advise the Legislature during budget hearings on (1) the status of the backlog in the conviction history files within the Criminal History System; (2) the status of backlogs in processing CDC inmate fingerprints; and, (3) the proposed redirections to reduce the backlogs in the current and budget years.
In addition, in order for the Legislature to maintain oversight and ensure that the DOJ continues to make progress in reducing these backlogs in the budget year, we recommend the adoption of the following supplemental report language:
The Department of Justice shall report to the legislative fiscal committees on December 31, 1996 on the status of the backlogs in the processing of the conviction history files and the Department of Corrections' inmate fingerprints.
We recommend that the Department of Justice report to the Legislature during budget hearings on: (1) the status of the backlog of DNA tests of sexual offenders and (2) the status of the automation of the DNA analysis system. We further recommend that the Legislature adopt supplemental report language directing the department to report on December 31, 1996 on the status of the backlog.DNA identification, also known as "genetic fingerprinting," can use specimens left at a crime scene to identify an offender by disclosing a number of identifying characteristics. The DOJ operates a DNA laboratory in Berkeley that examines DNA samples and serves as a DNA databank of convicted sex offenders and other violent criminals. In addition, the lab is responsible for storing samples of DNA evidence obtained from unsolved crimes.
The DOJ is charged with the responsibility of providing law enforcement agencies with complete files of information on habitual sexual offenders. According to the DOJ, the laboratory's highest priority is the DNA analysis of samples from sexual offenders who are released from the CDC.
DNA Testing Backlogs. We reported in our Analysis of the 1994-95 Budget Bill,that there was a serious backlog of DNA samples awaiting analysis. Legislation enacted in 1994, Ch 6x/94 (SB 12x, Thompson), appropriated $2 million from the General Fund to the department to reduce the backlog of DNA tests. This funding was used to automate the DNA testing equipment. However, as of January 1996, significant backlogs persisted. Although, the DOJ's databank currently holds 4,500 sex offender profiles, 25,829 sex offender samples still await analysis. There are an additional 68,265 samples, related to crime scenes or obtained from other types of offenders, that also are awaiting analysis. The DOJ projects that it will receive an additional 4,000 convicted sex offender samples in 1996.
The DOJ has automated its DNA analysis equipment, and staff completed training on the equipment in January 1996. The DOJ reports that the offender backlog will be eliminated by June 1997. Because the new automated procedures have just been activated, we do not have sufficient data to evaluate the accuracy of the DOJ's projected completion date.
Analyst's Recommendation. Given this situation, we recommend that the DOJ report to the Legislature during budget hearings on: (1) the status of the backlog of DNA tests of sexual offenders and (2) the status of the automation of the DNA analysis system.
In addition, in order for the Legislature to maintain oversight and ensure that the DOJ continues to make progress in reducing these backlogs in the budget year, we recommend the adoption of the following supplemental report language:
The Department of Justice shall report to the legislative fiscal committees on December 31, 1996 on (1) the status of the backlog of DNA tests of sexual offenders and (2) the status of the automation of the DNA analysis system.
The illegal manufacture of methamphetamine is becoming a serious problem in California, costing the state millions of dollars annually for enforcement of drug laws and clean-up of clandestine laboratories. In order to defray the state's increasing costs for enforcement and cleanup, the Legislature may wish to consider imposing a targeted excise tax on the retail sale of precursor chemicals used in the illegal manufacture of methamphetamine.The budget proposes a total of $12 million ($9.4 million from the General Fund) in the DOJ and Department of Toxic Substances Control (DTSC) related to the enforcement of laws dealing with the illegal manufacture of methamphetamine. This is an increase of about 25 percent over current-year expenditures.
Our review indicates that the proposed augmentations are justified, particularly in light of the growing problem of methamphetamine manufacturing in California. In this analysis, we review that growth, the state's programs to curb the growth, and suggest a new funding source that the Legislature may wish to consider to offset the state's costs of enforcement and clean-up of methamphetamine by targeting the illegal manufacturers of such drugs.
Background. The illegal use of methamphetamine is growing at an alarming rate. Data from hospital emergency rooms and from medical examiners have shown significant increases in methamphetamine-related hospital admissions and deaths. In 1994, California hospital emergency rooms reported up to 90 percent increases in the number of admissions related to the illicit use of methamphetamine. From 1991 to 1994, the number of deaths attributed to methamphetamine increased by 144 percent in San Francisco and by 113 percent in Los Angeles. An estimated 4 million persons in the United States have abused methamphetamine at least once.
Illegal Manufacture of Methamphetamine. Unlike many other illicit drugs which are imported into the state, most illegal methamphetamine is manufactured in California clandestine labs. In 1994, 533 of the 809, or 66 percent, of clandestine labs seized nationwide, were in California. So much illegal methamphetamine is manufactured in California, that the federal Drug Enforcement Agency (DEA) has identified the state as "source country" for the drug.
According to the DOJ and the DEA, the illegal manufacture of the drug used to be the domain of "outlaw biker" organized crime groups, such as the Hell's Angels. However, polydrug organizations, originating in Mexico, have taken over both production and distribution of the drug. These organizations distribute methamphetamine using their existing distribution systems for heroin, marijuana, and cocaine. Because the "street" costs of the drug have declined, it is assumed that there is significantly more of the drug available then in recent years.
Precursor Chemicals. The manufacture of methamphetamine requires specific chemicals, known as precursors. Some of these precursor chemicals are part of the finished drug--such as ephedrine--others are needed for the production or "cooking" process, such as freon. Almost all of the chemicals used to manufacture the drug are toxic. In addition, the process of cooking the drug is both toxic and very dangerous. Both the apparatus used in the manufacture of methamphetamine as well as the byproducts of the process are very toxic and are usually abandoned after the drug has been made.
The DOJ, through its Precursor Compliance Program, tracks the sale of precursor chemicals and laboratory equipment. Under both federal and state law, businesses selling precursors must register, and then report the sales of the chemicals to the DOJ. Generally, the businesses must report sales in excess of certain amounts or when the purchaser uses cash. According to the DOJ, these types of purchasers rarely have legitimate uses for the chemicals. This registration data is part of a DOJ automated tracking system and is used for criminal investigations.
The DOJ's Clandestine Lab Program.In California, the DOJ is the lead agency assisting local law enforcement in seizing clandestine labs. The DOJ's special agents assigned to the Clandestine Lab Enforcement Program (CLEP) were responsible for seizing 419 of the 533 labs in California. Figure 30 shows the amounts of methamphetamine seized by CLEP from 1990 through 1994.
Budget Proposes Increase in Funding for Methamphetamine Enforcement.The state takes the lead in methamphetamine enforcement because manufacturers of the drug often move from jurisdiction to jurisdiction, making detection and apprehension difficult for local law enforcement. In addition, the seizure of a clandestine lab requires significant training and protective equipment because of the toxic chemicals associated with the production of the drug. The CLEP expenditures for 1995-96 are estimated to be $4.4 million. The DOJ has requested authority to expand CLEP in the budget year to address a backlog of cases. Currently 72 agents are assigned to the program. The Governor's Budget requests an augmentation of $2.7 million from the General Fund for 15 new agents and other staff, such as an industrial hygienist, to expand enforcement activities. The DOJ reports that it had over 1,100 backlogged investigations in 1995.
Clandestine Lab Clean-Up. The DTSC assumed responsibility for the clean-up of toxic wastes at clandestine labs in 1994-95. The responsibility for cleanups was transferred from the DOJ to the DTSC by Ch 55x/94 (SB 47x, Calderon). In 1994-95, the DTSC's expenditures for cleanups was $3 million, and the average cost to clean up a clandestine lab site was about $7,000. Because the DOJ is planning to expand its CLEP program, the DTSC is requesting an augmentation of $1.6 million from the General Fund to address the projected increase in lab seizures that would result from the expansion of CLEP. With this requested increase, the total DTSC costs of clean-up of clandestine labs would increase to $4.6 million annually.
An Excise Tax Could Defray the Costs of Enforcement and Clean-up. Given the growing problem caused by methamphetamine manufacturing and the increased costs to the state, the Legislature may wish to explore legislation to generate additional funds to defray the state's costs by targeting illegal manufacturers of the drug.
Unlike most other situations involving the illicit drug trade, the manufacturers of illegal methamphetamine, through their purchases of precursor chemicals, can be identified. The DOJ currently uses the registration data it collects on precursor sales to develop information on manufacturers for criminal investigations. The same system that requires registration and reporting of precursor chemical sales, could also be used to fund enforcement and clean-up costs.
Specifically, the Legislature could enact an excise tax on the retail sale of the precursor chemicals. The DOJ reports thousands of tons of chemicals are sold annually by retail sellers of these products. The department does not have data on the precise dollar value of such sales but estimates they total in the millions of dollars annually. According to the DEA, most legitimate users of precursor chemicals purchase the chemicals at the wholesalelevel, thus a tax at the retail level would not affect these users. This is an important distinction because the purpose of the tax would be to defray state costs for enforcement and cleanup by targeting illegal manufacturers. Furthermore, because retail sellers must already register with the DOJ (there are 32 registrants currently) the tax collection process would be relatively easy to establish. The enactment of an excise tax--at the point of retail sale--for precursor chemicals could generate revenues to defray the state's General Fund costs. In constructing such a tax at the retail level, a provision could be included so as to allow any buyer who could document a legitimate reason to purchase these chemicals to be exempt from the tax.
We recommend approval of $2.4 million requested for laboratory equipment and vehicle replacement, but recommend that the Legislature direct the Departments of Justice and Finance through supplemental report language not to include the amount in the baseline budget.The budget requests $2.4 million from the General Fund for equipment replacement for the DOJ's criminalistic laboratories ($1.2 million) and for replacement of vehicles used in the Division of Law Enforcement ($1.2 million). The request proposes to build these expenditures into the DOJ's baseline budget to fund additional equipment and vehicle purchases in future years.
Our review indicates that both proposals for equipment and vehicle replacement are justified. The DOJ advises that the laboratory equipment, which is used for forensic testing of crime scene evidence, controlled substances, and blood alcohol samples, has outlived its useful life and is either inoperable or requires extensive and expensive repairs. In addition, the DOJ advises that the vehicles requested for replacement, which are used by special agents and staff in investigations, narcotics enforcement, and forensic services, have exceeded 100,000 miles in usage.
Equipment Replacement Should Not Be Included in Base Budget. Although we believe that the request is justified, adding the additional funding to the department's baseline budget would mean that the DOJ would have the same level of funding to use for equipment and vehicle replacement each year. We do not believe that major equipment purchases such as those proposed should be included in the baseline. Instead, equipment purchases should be "zero-based" and justified each year. Justifying major equipment purchases each year has always been standard budget practice and, we believe, provides the Legislature with a better opportunity to perform oversight of the DOJ's annual budget.
For these reasons, we recommend that the Legislature direct the DOJ and the Department of Finance not to add the funding for equipment and vehicle replacement to the DOJ's baseline budget.
This could be accomplished by adopting the following supplemental report language:
It is the intent of the Legislature that the Department of Justice's baseline budget not include an increase for laboratory equipment and vehicle replacement. Equipment replacement shall be justified in the annual budget process.
We recommend that the Legislature obtain clarification from the Attorney General regarding the relationship and the long-term fiscal impact of the proposed forensic laboratory equipment upgrades and his recent proposal for the state to issue lease-payment bonds to replace laboratories.The Attorney General recently indicated that he would seek legislation to enact a $32 million lease-payment bond that would allow the DOJ to replace a number of criminalistics laboratories. Our review indicates that it is not clear how the budget request of $1.2 million from the General Fund for laboratory equipment replacement and other lab upgrades relates to the Attorney General's bond proposal. Moreover, the use of lease-payment bonds would have a long-term effect on the department's support budget as payments are made to retire the bond. For these reasons, the Legislature should ask the DOJ to clarify the relationship between the two proposals and their long-term fiscal and programmatic effects, either in budget hearings or on hearings that may eventually be held on the bond proposal.
List of Findings and
Federal Crime Bill Funding for California
Inmate and Parole Population Management Issues
The "Graying" of the CDC
Department of the Youth Authority
Trial Court Funding Consolidation Proposal
Department of Justice
Correctional Law Issues
Division of Law Enforcement
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