Neither courts nor Legislature have backlog answers

Technological and infrastructural disparities among California's 58 counties have exposed a rift that nearly a year into the pandemic continues to puzzle legal experts on what needs to be done to alleviate swelling case backlogs and provide equal access to justice.

Speaking remotely at a joint hearing of the Assembly and Senate judiciary committees on how the pandemic has affected courts and personnel, California Chief Justice Tani G. Cantil-Sakauye said Tuesday it's becoming clear that issuing uniform orders might not be the answer.

"Statewide rules are rife with challenges because so many times we are often accused, at least I have been in myriad lawsuits in federal and state court, of undermining local diverse leadership, of presuming superiority with abstract wisdom over boots on the ground experience and trust," Cantil-Sakauye said. "And statewide orders also can be difficult because they don't take into account the culture of a community."

While some trial courts have been creative and have contracted local gyms and sports arenas to conduct jury selection, rural counties have less flexibility than larger counties to keep processes moving fluidly. The chief justice said she has reviewed nearly 500 local emergency orders proposed by presiding judges from across the state, each of them describing different needs.

Although uniform statewide orders relating to school closures and vaccine rollouts are "issues where it seems so simple to say a statewide rule would work," she said, "that is not always the Band-Aid that really suffices to fix the problem" when it comes to restoring court operations to pre-pandemic levels.

Still, despite it being nearly a year since Cantil-Sakauye issued 13 statewide emergency orders for local courts, members of the California Judicial Council could not answer lawmakers' repeated questions Tuesday about how the Legislature can help courts tackle civil and criminal backlogs caused by the pandemic, nor were they able to say how much money the budget-deprived judiciary needs to solve the problem.

"There's a wide variety of things that need to be addressed with each court to determine what is it that you particularly need to move forward with your cases, deal with your case backloads, and then once we gather the data and do the analysis, then we can come up with a solution," said Monterey County Superior Court Judge Marla O. Anderson, chair of the Judicial Council's Legislation Committee. "But sometimes when you put the cart in front of the horse and the horse is pushing the cart, we don't get very far. But I think if we're able to continue to collaborate and continue to share information, then we can come up with answers."

The Legislative Analyst's Office earlier this month recommended in a report that the Legislature should "broadly consider the level of service it desires from the trial courts relative to its other General Fund priorities" to determine how much additional funding should be provided for trial court operations. The office said in the report that lawmakers should consider whether additional funding to lease additional court space to conduct socially distanced jury trials is necessary to minimize long-term effects on trial court operations.

But even with a recent agreement between Gov. Gavin Newsom and two top state lawmakers to restore $200 million in proposed cuts to the state budget to address case backlogs, Sen. Tom Umberg, D-Santa Ana, who chairs the Senate Judiciary Committee, was told the judicial branch does not have a clear timeline for making such legislative recommendations.

"Restoration of the budget, I think, is a very strong movement towards normalcy," said Robert Oyoung, chief operating officer of the Judicial Council. "But to be frank, one of the big constraints for us again is the physical distancing requirements due to the pandemic."

That seems to be the crux of the problem.

All of the 470 local emergency orders Cantil-Sakauye was asked to review over the last year noted differences in courtroom space and technological capability as being challenges to returning to normal operations. The one consistency among them, however, was "the outright fear of jurors to come to court," she said.

"Judges are put in a very difficult spot," she said. "We are asking so many people to come to court so that an accused may have their day in court. Jurors are afraid to come ... They're afraid, even though courts have Plexiglas and thermometers and every manner of protective gear. Who can blame jurors for being afraid?"

But even as jurors return and court trials resume, social distancing requirements mean fewer trials can proceed at any given time. The Legislative Analyst's Office expects that will result in a backlog and increased costs even after the pandemic ends.