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January, 2007


Judicial Council And State Courts Offer Propaganda Not Equal Justice
By Barbara Kauffman

If the public is wondering why-- year after painful year, and despite a multitude of complaints by court users-various of the California courts are neither fair nor diverse, here is the answer: equal justice, fairness and diversity are not priorities of the courts. In fact, those concepts rank at the very bottom of the list of California Judicial Council and trial court objectives.
A review of key reports and a new focus-group video available on the California Courts website ( reveals the skewed objectives of our California court system, as well as the misleading propaganda which is purposefully being generated by the California Judicial Council in an apparent effort to further-and mask-those skewed objectives.

The Judicial Council periodically adopts and issues "strategic plans" identifying its policies and goals for our courts. These plans are available on the California Courts website. The Judicial Council has been claiming for years in its published strategic plans that its first goal is to promote "access, fairness and diversity" in the judiciary.

For example, the first goal stated in the March 2000 Judicial Council Strategic Plan for the years 2000-2006 (entitled "Leading Justice Into the Future") is as follows:

Goal I: Access, Fairness and Diversity.
All Californians will have equal access to the courts and equal ability to participate in court proceedings, and will be treated in a fair and just manner. Members of the judicial branch community will reflect the rich diversity of the state's residents."

Similarly, the first goal stated in the new December 2006 Judicial Council Strategic Plan for the years 2006-2012 (entitled "Justice in Focus") is as follows:

Goal I: Access, Fairness and Diversity.
California's courts will treat everyone in a fair and just manner. All persons will have equal access to the courts and court proceedings and programs. Court procedures will be fair and understandable to court users. Members of the judicial branch community will strive to understand and be responsive to the needs of court users from diverse cultural backgrounds. The makeup of California's judicial branch will reflect the diversity of the state's residents.

Sounds great. However, a June 22, 2005 report issued by Praxis Consulting for the Judicial Council reveals that in fact, "Access, Fairness and Diversity" rank at the bottom of the list of goals and objectives of the California trial courts and Judicial Council. The Praxis report is entitled "Recommendations for Improving Trust and Confidence-Analysis of Trial Court Plans and AOC Strategic Projects." As the title indicates, Praxis gathered, analyzed and compared the objectives and goals set forth in California's trial court operational plans, with objectives and projects of the Judicial Council's staff agency-the AOC.

The California trial court operational plans revealed a total of 1,038 plan objectives. 110 (approximately 11%) of those objectives fell within the "Access, Fairness and Diversity" category of goals. Those 110 objectives are further broken down as follows:

General Access/Information: 41.8
Self-Represented litigants: 22
Access to Facilities: 19.8
Interpreters: 15.4
Diversity/Culturally Appropriate Services: 6.6

Equal Justice/Fairness: 4.4

The implications of these findings are staggering. Just 6.6 of the total 1,038 trial court objectives fall in the Diversity/Culturally Appropriate Services categories (less than 1%), and just 4.4 of the total 1,038 trial court objectives fall in the Equal Justice/Fairness category (less than one-half of 1%.)

The Praxis report explains that examples of goals and objectives falling into the "Diversity/Culturally Appropriate Services" include to "(1) be aware of the service needs of the diverse ethnic population of the county; (2) provide culturally appropriate services, (3) encourage diversity for all appointments made by the court, (4) ensure that court personnel reflect the diversity of the population, (5) address ethnic bias, and (6) understand cultural differences."

Examples of goals and objectives falling into the "Equal Justice/Fairness" category include those that: " (1) provide equal access for all people, (2) implement consistent policies and procedures to promote fairness and standardization, and (3) treat all court users fairly."

One would think and hope California's Chief Justice and the Judicial Council would step in and make sure the California courts reshuffle their objectives and take immediate steps to implement its touted "number one" policy goal of treating Californians in a "fair and just manner," and having our courts "reflect the diversity of the state's residents."

Alas, no. Trial court objectives closely track Judicial Council projects.

The 2005 Praxis report reveals that the Judicial Council, through its staff agency (the AOC) was involved in 54 projects. Just 2 of those projects (4%) fall into the Access, Fairness and Diversity categories.

The stunning lack of focus on equal justice, fairness and diversity is a problem for the courts, because according to the Praxis report, a 2005 "Trust and Confidence" survey of the public and attorneys performed for the Judicial Council revealed all of the following:

"The strongest influence on public opinions of the courts is the perception of fairness in the procedures used by the courts. Factors that are associated with procedural fairness include (1) being unbiased in case decisions, (2) treating people with dignity and respect, (3) listening carefully to what people have to say, and (4) taking the needs of people into account."

"Statewide factors that influence perceptions of procedural fairness include (1) protecting constitutional rights, (2) ensuring public safety, (3) assisting those who want to act as their own attorney, (4) reporting to the public on job performance, and (5) making sure judges follow the rules..."

"Local factors that influence perceptions of procedural fairness include (1) conducting cases in a timely manner, (2) being open at convenient times, (3) judges being honest and fair, (4) judges who are independent (not influenced by political considerations), (5) the average citizen being able to understand what takes place in courts, (6) juries being representative of the community, (7) the courts being in touch with the community, (8) overcoming feelings of reluctance/uneasiness about going to court.. ."

"Experience in a court case other than a juror (e.g., litigant, witness, victim, respond to a jury summons) is associated with both lower approval ratings of the courts and lower ratings on procedural fairness."

"Victims and litigants gave the lowest approval ratings of the courts."

"Members of the public who are more familiar with the courts are the least positive/have the least confidence in the courts"

"Attorneys who do business with the courts on a daily basis tend to be the least positive in their assessments of the courts"

In other words, according to the Praxis report, the 2005 trust and confidence survey revealed that 1) fairness in our courts is of primary importance to the public, and 2) those with the most experience with the court-other than as a juror-are the least positive in their assessments of the court.

The June 2005 Praxis confidential report was followed by a slick September 2005 report authored by a consultant for the National Center of State Courts. That report "Trust and Confidence in the California Courts, A survey of the Public and Attorneys" bears little resemblance in format, style and content to the frank findings of the survey as set forth in the Praxis report. In fact, the September 2005 report is being used by the Judicial Council as evidence of how well the public believes the courts are performing. It is notable that the September 2005 report reveals that based on the survey results, "people most often get information about the California courts from TV news programs and newspapers or magazines," as well as television dramas or television judges like "Judge Judy." The survey reveals that among the public, less than one in five believes they are "intimately" or "broadly" familiar with the court. The September 2005 report did, however, include the inescapable fact that among those surveyed, increased experience with the courts was associated with a decrease in confidence in the courts, except with respect to jurors.

The Judicial Council decided to follow up the 2005 Praxis and Trust and Confidence reports by obtaining information from "focus groups" of alleged "court users."

This was apparently for damage control, rather than true information-gathering purposes, because the focus groups appear to have been conducted in a highly improper manner specifically designed to garner responses favorable to the court.

The Judicial Council knows how to properly conduct focus groups, because it has a 1998 publication on the court website entitled "Using Focus Groups in Community-Focused Court Planning."

That focus group guide includes the following tips:

"It should be noted that focus groups must be planned and operated skillfully in order to avoid biasing the information gathered."

"Open ended questions ["what has been your experience in our traffic court system?"] are the most distinctive feature of an effective focus group session as they greatly increase the chances of collecting unbiased data. This is so because the open ended question does not imply or suggest a prescribed correct answer. Instead, participants are encouraged to respond based on their specific situation."

"A facilitator guides focus group meetings. Therefore, choosing the facilitator is one of the most influential factors affecting the quality of focus group results."

"An effective facilitator guides the discussion and listens to what is said. The facilitator should not engage in discussion, share personal views, or otherwise shape the outcome of the group interview

"[I]f unbiased data is to be gathered, the facilitator must suspend his/her personal views and seek out the perceptions of the focus group participants."

"Facilitators must be attentive to how they respond to comments-both verbally and nonverbally. Often unconscious gestures and comments suggest agreement or disagreement and can shape the direction of participant responses."

The focus group guide gave sample questions to ask regarding fairness of the courts:

"Based on your interactions with the ____County court, do you perceive our justice system to be fair? If no, in what areas do you perceive that there is a lack of fairness?"

The Judicial Council ignored its own guidelines in its recent focus groups. According to a video of some of the groups, available on the California Courts website, the Judicial Council primarily used a single balding male facilitator who deftly guided the answer to very direct and leading questions-by raising his own hand first in answer to his questions:

Questions asked include:
"Who agrees that judges would not take a bribe?," and then the facilitator shoots his hand up, followed by the focus group participants raising their hands.

"Are judges on balance fair or unfair-who would say fair?," and then the facilitator again shoots his hand up, followed by the focus group participants raising their hands.

(Query: how many focus group participants, knowing they are being videotaped, and knowing they could easily end up in court again, would answer these questions differently even without the prompting of the facilitator?)

In this manner, the Judicial Council obtained some very professionally guided and misleading propaganda, which it is now promoting as "evidence" that court users believe judges are fair and would not take a bribe. Surely the Judicial Council will be using these "results" to lobby our governor and the legislature for more judges (Ron George's goal is 150 new judges); higher judicial salaries; longer judicial terms so the judges face fewer elections; constitutionally guaranteed court funding; and to silence and/or undermine genuine negative feedback about our courts from concerned attorneys and court users.

As a further point of interest, the California Court website indicates that the Judicial Council had a "Judicial Ethics" task force which expired in August 2006. As of December 7, no new force had been appointed.

Additionally, according to Brad Campbell of the AOC, the Judicial Council has no present or accurate idea of how many or which judges in each county have been asked by litigants to recuse themselves for bias or other reasons. This information could and should be readily available to the public and to the Judicial Council, which is supposed to be monitoring the performance of the California courts. Instead, nobody's minding the "equal justice, fairness, and diversity" departments of the proverbial court store. Obviously, nobody in charge cares.

Our American system of government was designed to ensure that people have their day in court, before an impartial trier of fact. The public wants and is entitled to have the diversity of the population to be reflected in the courts. The Judicial Council and the courts aren't delivering. Equal justice, fairness and diversity are at the bottom of the list of court objectives. As public unrest and dissatisfaction with the courts naturally grow, Justice George, the Judicial Council, and the courts would be well advised to heed Justice George's own words, spoken a November 2005 New York University lecture:

"We [the courts] shall be measured in the end by how well we perform our constitutional function of providing fair and accessible justice and preserving the rule of law."

The Judicial Council shouldn't be hiring public relations experts and staging improper focus groups to obtain a passing grade on the performance of the California courts. The American public isn't stupid. No one-- not even a charismatic Chief Justice, not even the best political consultant money can buy-- will convince someone who was improperly deprived of his or her life, liberty, children, property or day in court by a corrupt judge or court system that he or she got a "fair shake."

Courts should be using the taxpayer funds the judicial branch receives to make equal justice, fairness and diversity their genuine primary focus, as the public wants and expects. It appears painfully obvious that the courts aren't interested in this plan.

What can be done? The governor and the legislators approve court funding, and they can and should demand genuine accountability from the courts. They should demand that the Judicial Council immediately implement annual legitimate, professional, neutral judicial and court performance surveys of court users (litigants, victims, attorneys, court staff, witnesses, etc.) at all levels, in all counties, throughout the state, so that the public and legislators can receive "report cards" allowing the true measurement of court service and judicial performance by actual court users. In that manner the public, the governor and the legislature will get a true picture of what is right and wrong with our court system, and what needs improvement and funding.

The governor and legislators should also approve increased funding for the Commission on Judicial Performance, to a level which will allow thorough investigation and action regarding all complaints it receives. The Commission should gather data and release regular reports to the governor, Judicial Council, legislature, and public about the number of complaints it receives about each judge, by county.

This is just the start. The California court system clearly needs an overhaul, with a massive and immediate reshuffling of priorities.

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