Bill speeding through Legislature would give chief justice new statewide emergency powers

California's chief justice is a step closer to being able to wield new emergency powers after an Assembly floor vote this week. However, some GOP lawmakers have continued to raise concerns that AB 3366 would create new, centralized powers that will far outlast the pandemic.

The bill passed the Assembly 62-2 on Monday and will now go to the Senate. It would allow the chief justice, as chair of the Judicial Council, to issue emergency orders covering multiple courts.

Currently, state law demands Chief Justice Tani G. Cantil-Sakauye issue a separate order for each court in the event "a war, act of terrorism, natural disaster, epidemic, or other emergency threatens the orderly operation of the superior court."

The current system is based on an understanding of such disasters as localized, usually short-term events. But the coronavirus has hit not just the entire state but the whole country, leading judges to shut down most in-person court operations.

Cantil-Sakauye has issued more than 100 orders regarding court operations in different counties.

While presenting the bill Monday, Assembly Judiciary Chair Mark Stone, D-Scotts Valley, argued that convoluted process required Gov. Gavin Newsom to issue an executive order on March 27 expanding the chief's powers for the duration of the current emergency.

"The existing emergency authority that the chief justice has is county by county and only at the request of the presiding officer," Stone said. "It cannot even be done in multiple counties if they suffer from a similar emergency."

Stone also said AB 3366 is supported by the California Defense Counsel and the Consumer Attorneys of California. But a May opposition letter from the California Chamber of Commerce warned the bill would allow a chief justice to "eliminate statutes of limitations for all civil actions."

The bill was amended June 8 to make it an urgency measure that would go into effect as soon as Newsom signed it, instead of waiting until Jan. 1. This means Cantil-Sakauye would likely be able to use her new powers while the current pandemic is still affecting court operations.

The change also requires that AB 3366 receive a two-thirds vote to pass. It cleared that threshold with several votes to spare, despite just two Republicans voting yes. Fifteen GOP Assembly members abstained, including James Gallagher, R-Yuba City.

"I am concerned with giving too much power to the Judicial Council, vis-à-vis presiding judges in particular counties, and how that could be abused over the objections of local court systems," Gallagher stated. "I do at least have a concern this could lead to a bigger problem down the road."

Gallagher added he has not heard from any judges with concerns on the bill, but said the issue may not be "on their radar" given everything courts are dealing with.

"I have in fact talked to several presiding judges, and they are grateful," Stone replied.

Lawmakers have also been moving forward with plans to create a new agency to oversee one of the oldest watchdogs in state government: the Commission on Judicial Performance.

Last week, the Assembly voted 76-0 to pass AB 3363. It would create the awkwardly named Committee to Review the Operations and Structure of the Commission on Judicial Performance.

The new body would have 13 members, including the director and chair of the commission. The Senate and Assembly would each name two members, while the governor would name five, including at least two active judges. The committee would hold at least two public hearings and deliver recommendations by March 30, 2022.

The bill comes partially in response to a 2019 audit -- held up over two years by legal challenges -- that was critical of the agency. State Auditor Elaine Howle found the commission suffered from a lack of transparency and sometimes did not fully investigate allegations of judicial misconduct.

In April, the commission reported it closed 93% of cases after an initial review during 2019, the highest percentage in a decade.