The Case for a Harmonized California Court System

February 2020

By David M. Lederman, CFLS

On March 13, 2020,1 I was conferring with a clerk of the Contra Costa family court regarding an order I needed to pick up. Advised that the order was ready, I said thank you and I’d have someone pick it on Monday. The response I received was that I had better send someone to pick it up that day because the court would be closed the following Monday. “Excuse me?” That was my notice of court closure. As a practitioner in Contra Costa County with a busy hearing/ trial schedule, I learned that all of my hearings and trials were going to be vacated. Following this notice, the courts struggled. On March 16, 2020, the Director of Health Services for Contra Costa County issued its order to shelter at home in response to the COVID-19 pandemic. On March 19, 2020, Governor Newsom issued his statewide order that “all individuals living in the state of California… stay home or at their place of residence except as needed to maintain continuity of operations of the federal infra- structure sectors….”

By Monday the 16th my office was 100% virtual,
staff members were instructed to work remotely from home, the phone system was forwarded to mobile phones, and we had continuity of operations. Our infrastructure was designed to be scalable and untethered to physical geography. Our data exists on a secure cloud data farm. There was no difference in our access to internal systems and resources – we literally turned off the lights in our physical offices and reopened as a virtual firm the next day.

In the modern practice of law – Distance is Dead. The court system does not reflect the modern practice of law.

The response of different courts across California’s fifty-eight counties (“The 58” hereinafter) varied considerably. As of this writing (April 2020), some courts are completely closed, while others are only offering limited services. The timelines for closure or limited services are all over the map, as you can see at https://calawyers.org/court-updates/. Policy is set by the presiding judge of each court, who must obtain the approval of the Chairperson of the Judicial Council (Chief Justice of the California Supreme Court) to allow them to modify their operations. Government Code section 68070 states: “Every court may make rules for its own government and the government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council.” California has fifty-eight counties. This means up to fifty-eight sets of local rules, fifty-eight disparately organized filing systems, fifty-eight docketing systems, fifty-eight case management systems, fifty-eight computer systems (at least), and… well, this list could go on.

The California Government Code section 68115 states that during time of war, an act of terrorism, public unrest or calamity, epidemic, natural disaster, or other substantial risk to the health and welfare of court personnel or the public, or the danger thereof, the destruction of or danger to the building appointed for holding the court, a large influx of criminal cases resulting from a large number of arrests within a short period of time, or a condition that leads to a state of emergency being proclaimed by the President of the United States or by the Governor pursuant to Section 8625, threatens the orderly operation of a superior court location or locations within a county or renders presence in, or access to, an affected court facility or facilities unsafe, the presiding judge may request and the Chairperson of the Judicial Council may, notwithstanding any other law, by order authorize the court to do one or more of the following

• Hold sessions anywhere within the county.
• Transfer civil cases pending trial in the court to a superior court in another county.
• Declare that a date or dates on which an emergency condition, as described in this section, substantially interfered with the public’s ability to file papers in a court facility or facilities be deemed a holiday for purposes of computing the time for filing papers with the court under sections 12 and 12a of the Code of Civil Procedure. This paragraph applies to the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council.
• Declare that a date on which an emergency condition be deemed a holiday for purposes of computing time under those statutes. This paragraph applies to the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council.
• Extend the time periods provided in sections 583.310 and 583.320 of the Code of Civil Procedure to bring an action to trial. The extension shall be for the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council.
• Extend the duration of any temporary restraining order that would otherwise expire because an emergency condition, as described in this section, prevented the court from conducting proceedings to determine whether a permanent order should be entered. The extension shall be for the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council.
• Extend the time period provided in section 825 of the Penal Code within which a defendant charged with a felony offense shall be taken before a magistrate from 48 hours to not more than seven days, with the number of days to be designated by the Chairperson of the Judicial Council.
• Extend the time period provided in section 859b of the Penal Code for the holding of a preliminary examination from 10 court days to not more than 15 court days.
• Extend the time period provided in section 1382 of the Penal Code within which the trial must be held by not more than 30 days.
• Within the affected area of a county during a state of emergency resulting from a natural or human- made disaster proclaimed by the President of the United States or by the Governor pursuant to section 8625 of the Government Code, extend the time periods provided in sections 313, 315, 632, and 637 of the Welfare and Institutions Code, with the number of days to be designated by the Chairperson of the Judicial Council.

For the period of the COVID-19 pandemic, Governor Newsom expanded the chief justice’s authority by Executive Order N-38-20. In that document, Governor Newsom ordered, among other things, “To the extent Government Code section 68115 or any other provision of law imposes or implies a limitation on the subject matter the Chairperson of the Judicial Council may address via emergency order or statewide rule issued pursuant to section 68115, that limitation is suspended.”13 This is intended to “remove any impediment that would otherwise prevent the Chairperson from authorizing, by emergency order or statewide rule, any court to take any action she deems necessary to maintain the safe and orderly operation of that court.”14 This was a prudent course for the Governor to take. The courts need leadership during this crisis. However, this order does not go far enough.

The chief justice needed to cobble together a functioning court system in the middle of an existential crisis. In reviewing the actions of the court system, it is important to note and appreciate the herculean efforts made by the chief justice and The 58. In my county, the judicial officers reached across the well to partner with our local family law section to develop rules and procedures to provide services to those that needed them the most. The judges, the clerks, and court administrators exhibited a tremendous work ethic to try to “build the plane as it was crashing into the ground,” which is how this process was described by the court administrator. These efforts were duplicated throughout The 58 as each court sought permission to create their own set of emergency rules and create their own processes for administering their separate rules. Questions that The 58 needed to decide independently: Do we accept direct email filing? Do we use a physical “drop box” for filing of emergency pleadings? What gets tracked? What gets entered into what type of database?

California is the central technological hub of the world. Zoom, Apple, Cisco, Oracle, Google, simply starts the list of technology companies in California, yet to transfer a case from one county to another requires months of waiting and the transfer of a physical file and conversion to a new docketing system. When faced with the COVID-19 pandemic, the court system simply collapsed. It has no cohesive infrastructure. It is too decentralized. It is a mess.

The technology for a harmonized, efficient court system exists and can be tailored to the California court system. At minimum, the following improvements are needed, and should be singularly adopted uniformly throughout The 58. This will provide the court system with the ability to respond quickly and cohesively in a crisis and at a cost savings through economies of scale. This calls for a significant alteration of the court system. It requires detail logistical workflow planning with input garnered from each of The 58. At its most basic minimum, the state must develop the following:

• A single electronic docketing system interrelated between the counties.
• A single consistent electronic filing system with web-based access to filings by the public;
  • This will require a study of workflows and the development of a standardized document naming and identification system.
• A single system and implementation protocols for virtual court hearings and trials in addition to live trials.

There is nothing new or novel about the recommendations above. In 2006 the Administrative Office of the Courts in conjunction with the California Department of Health Services published a report titled Epidemics and the California Courts.15 The report recommended an action plan by The 58 and described most of the same technological adoptions I recommend here. The 58 cannot do this as independents. The court’s evolution must be cohesive and centralized. Government Code section 68070 was added by statute in 1953. It was last amended in 1999. Today’s world, the risks the courts face and the technologies available to deal with these risks have evolved. It is time for the court system to evolve as well.

Family Law News-Issue 2, 2020