Bill aims to give chief justice more power in any multi-county emergency

In the weeks after the coronavirus hit, California Chief Justice Tani Cantil-Sakauye issued more than 100 executive orders laying out procedures to keep courts operating. Many applied to just one county.

A bill authored by the Assembly Judiciary Committee and passed at its hearing Wednesday would allow Cantil-Sakauye and her eventual successors the ability to issue statewide orders in the event of a "statewide or multi-county emergency."

AB 3366 passed only after multiple amendments, perhaps illustrating the nervousness many legislators and interest groups have had with the increasing centralization of power during the pandemic.

Wednesday's hearing, for instance, came one day after a contentious Assembly session in which Democrats criticized many of Gov. Gavin Newsom's proposed budget cuts and the extent to which he has acted unilaterally without involving the Legislature. This included his recent appropriation of $1.8 billion in funds to address the pandemic.

"Under current law, the chief justice may issue court rules and procedures in an emergency, but under Government Code 68115 it only allows the chief justice to issue orders affecting a single county upon the request of the presiding judge of the superior court," said Assembly Judiciary Committee Chair Mark Stone, D-Scotts Valley, who stepped down from the dais to present the bill to his committee. "As we saw with this statewide epidemic or with a disaster that covers multiple counties, that law is not really workable."

The chief justice can issue orders based on her role as chair of the Judicial Council. But that authority is so limited that Newsom was forced to issue his own executive order on March 27 expanding her powers for the duration of the emergency and stating she was not limited in the "subject matter" of her orders. Yet the state's superior and appellate courts still ended up with a patchwork of rules and schedules.

Senate Judiciary Chair Committee Hannah-Beth Jackson, D-Santa Barbara, raised the idea of such a bill at the Judicial Council's emergency teleconference on March 28. AB 3366 was introduced May 4 by gutting an existing bill relating to "a fraudulent promise to enter into a domestic partnership," with the support of California Defense Counsel and Consumer Attorneys of California.

"Both of them being on this bill shows the amount of amendments we have taken trying to make sure we are giving appropriate levels of authority to the chief justice," Stone told his committee.

"We saw unfortunately how dysfunctional the current statute is, because it really did not anticipate a pandemic," testified the consumer attorneys group CEO, Nancy Drabble. "We saw the chief justice did not have adequate authority and was forced to wait for various requests from individual courts."

But according to a coalition of dozens of business groups led by the California Chamber of Commerce, the bill went too far.

"The sobering reality is California regularly exists under one or more state of emergencies and they often can persist for years," said chamber policy advocate Adam Regele in a May 5 opposition letter. "By suspending the statute of limitations during the pendency of any state of emergency, AB 3366 effectively eliminates statutes of limitation for all civil actions in California."

The letter went on to call the bill "unnecessary," noting the Judicial Council was able to pass emergency rules on April 6 tolling all statutes of limitations for civil trials until 90 days after Newsom lifts his emergency order.

A set of amendments on May 20 replaced most of the bill with language specifying the Legislature's intent to grant more authority to the chief justice.

A new set of amendments that will go into print by Friday adds specifics back into the measure. These lay out in detail what constitutes an emergency, how rules can be modified and sets out a renewable, 30-day limit on emergency orders.

These led the chamber and others to be neutral on the bill. It passed with the votes of eight Democrats; the committee's three Republicans abstained.

Several appellate attorneys noted the difficulty of the procedures Cantil-Sakauye had to go through. David S. Ettinger, of counsel with Horvitz & Levy LLP in Los Angeles, wrote repeatedly about her orders on the firm's At the Lectern blog. Reached on Wednesday, he had not seen the latest amendments but said the latest bill would appear to address the important issues.

"Based on the statement of intent and the bill analysis by the Assembly Judiciary Committee, the bill will seem to address the problems with current Government Code section 68115," Ettinger said by email, adding that these were "positive changes."

Ettinger added that it was ironic the bill was not written as an urgency measure that could go into effect immediately. Rather, if passed it would become law on Jan. 1 and might not be used until the next statewide emergency.