BILL ANALYSIS
AB 159
Page 1
Date of Hearing: April 10, 2007
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 159 (Jones) - As Amended: March 22, 2007
SUBJECT : NEW AND CONVERTED JUDICIAL POSITIONS
KEY ISSUES :
1)Should THE LEGISLATURE ALLOCATE ANOTHER 50 JUDGESHIPS to help
narrow the large gap in needed judgeships?
2)Should NO MORE THAN 162 existing subordinate judicial officer
(sjo) positions be converted into superior court judgeships
when those sJO positions become vacant?
3)Should the number of APPELLATE judgeships be increased TO a
number YET to be determined by the LEGISLATURE in order to
ADDRESS EXPANDING APPELLATE workload?
4)HOW MUCH WORK NEEDS TO BE DONE TO MAKE THE STATE'S JUDICIARY
PROPERLY REFLECT THE GREAT DIVERSITY OF ITS SOCIAL FABRIC?
SYNOPSIS
This bill, sponsored by the Judicial Council of California,
seeks, upon legislative appropriation, to authorize 50 new
judgeships to address the growing "justice gap" in California.
Placement of the new positions shall be determined pursuant to
uniform and objective criteria approved by the Judicial Council
for determining trial court judgeship needs. The bill also
seeks to permit the conversion of no more than 162 existing
subordinate judicial officer (SJO) positions to judgeships in
eligible superior courts upon vacancy in the current SJO
position. Eligibility for SJO conversions shall also be
determined according to uniform and objective criteria approved
by the Judicial Council. As new judicial positions, applicants
for appointment under the bill's SJO conversion shall be subject
to the same appointment and review process as any other judicial
candidate, including review by the State Bar's Commission on
Judicial Nominees Evaluation (the JNE Commission). The analysis
also reviews the current relative lack of diversity in the
state's judiciary, and notes that much work remains in order to
ensure that our judiciary properly reflects the broad and unique
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diversity of California's social fabric. The bill is supported
by the California Judges Association (CJA), the Civil Justice
Association of California (CJAC), Consumers Attorneys of
California (CAOC) and many individual courts and Bar groups.
There is no known opposition to the bill.
SUMMARY : Seeks to authorize 50 new superior court judgeships,
the conversion of 162 existing subordinate judicial officer
(SJO) positions to judgeships upon the vacancy of SJO positions,
and an unspecified number of new appellate positions.
Specifically, this bill :
1)Creates 50 new superior court judgeships, upon appropriation
by the Legislature, pursuant to specified uniform and
objective criteria as updated and approved by the Judicial
Council on February 23, 2007.
2)Authorizes the conversion of no more than 162 SJO positions to
superior court judgeships, upon appropriation by the
Legislature, pursuant to specified uniform and objective
criteria approved by the Judicial Council.
3)Declares the Legislature's intent in enacting this SJO
conversion program to restore an appropriate balance between
subordinate judicial officers and judges, and to ensure that
critical case types are heard by superior court judges.
4)Authorizes the addition of an as of yet to be determined
number of appellate judges upon appropriation by the
Legislature in the 2007-08 fiscal year.
5)Continues in place last year's requirement that the Judicial
Council, on or before November 1 of this year, adopt and
report to the Legislature annually thereafter upon, judicial
administration standards and measures that promote the fair
and efficient administration of justice.
6)Continues in place last year's requirements that on or before
March 1 of this year, and annually thereafter, all of the
following shall occur: (a) the Governor shall disclose
aggregate statewide demographic data provided by all judicial
applicants relative to ethnicity and gender; (b) the
designated agency of the State Bar responsible for evaluation
of judicial candidates shall collect and release statewide
demographic data provided by judicial applicants reviewed and
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a statewide summary of the recommendations of the designated
agency by ethnicity and gender; and (c) the Administrative
Office of the Courts shall collect and release the demographic
data provided by justices and judges relative to ethnicity and
gender by specific jurisdiction.
EXISTING LAW :
1)Provides that the Legislature shall prescribe the number of
judges and provide for the officers and employees of each
superior court. (California Constitution, Article VI, Section
4.)
2)Provides that the Legislature may provide for the trial courts
to appoint officers such as commissioners to perform
subordinate judicial duties. (California Constitution,
Article VI, Section 22.)
3)Authorizes the courts to appoint subordinate judicial
officers, and sets forth their duties and titles. (Government
Code section 71622.)
4)Authorizes 50 new trial court judgeships pursuant to
appropriation by the Legislature in 2006-2007. It also
requires the Judicial Council to update its Judicial Needs
Study every other year, based on the most recent prior three
years' filings data, and report that information to the
Legislature. (Government Code section 69614.)
5)Requires that on or before March 1 of this year, and annually
thereafter, all of the following shall occur: (a) the Governor
shall disclose aggregate statewide demographic data provided
by all judicial applicants relative to ethnicity and gender;
(b) the designated agency of the State Bar responsible for
evaluation of judicial candidates shall collect and release
statewide demographic data provided by judicial applicants
reviewed and a statewide summary of the recommendations of the
designated agency by ethnicity and gender; and (c) the
Administrative Office of the Courts shall collect and release
the demographic data provided by justices and judges relative
to ethnicity and gender by specific jurisdiction. (Government
Code section 12011.5(n).)
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
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COMMENTS : This bill, sponsored by the judicial branch of our
government, seeks to make progress in adding judicial resources
to an increasingly overburdened court system.
In support of the measure, the author states:
California is facing a severe shortage of trial court
judgeships. As you know, access to the courts is
fundamentally compromised by judicial shortages.
Every Californian is constitutionally entitled to
impartial and timely resolution of disputes through
the courts. The current shortage of judicial resources
means that civil proceedings, family law hearings, and
probate matters are routinely rescheduled. It means
that litigants cannot get matters heard, public safety
is compromised, and it makes for an unstable business
climate. It fundamentally means Californians cannot
get fair, timely, and equitable justice they seek
every day in our courts. An analysis prepared by the
National Center for State Courts, and updated by the
Judicial Council, shows that California suffers from a
shortages of in excess of 360 trial court judges.
This bill, which has no opposition and bi-partisan
support, will continue our effort, commenced last
year, to strengthen our quality of justice in
California.
Background : According to the Judicial Council, since 1980, the
total number of new judges in the trial courts has grown by
approximately 20 percent. However during the same period, total
population in California grew by more than 50 percent. In
Riverside County, where recent news reports have documented very
serious backlog and other justice problems, the population is up
a remarkable 150 percent since 1980 - and in San Bernardino
County, population has risen 100 percent in that time period.
Following is a chart provided by the Judicial Council that shows
how courts in the fastest growing counties are facing the most
critical need for judges:
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According to the Judicial Council, with the enactment of last
year's SB 56, there are currently 1548 authorized superior court
judgeships and about another 422 commissioner and referee
positions, for a total of 1,970 "Authorized Judicial Positions"
(AJPs). The Judicial Council, however, states that current
judicial workload requires the services of several hundred more
judges to reach a total of 2,332 "Judicial Position
Equivalents"(JPEs), which include the AJPs noted above in
addition to the services of assigned judges, temporary judges,
and temporary commissioners and referees. This assessed
judicial need reflects a three percent increase over the need
calculated in 2004. This growth in judicial need is
attributable to the fact that 46 courts experienced a growth in
judicial workload from 2004 to 2007, many of which were already
significantly underresourced in 2004. As an example, due to
workload increases from 2004 to 2007, Fresno's judicial need
grew by 7.7 positions, Placer, 8.2, Riverside 12.1, Sacramento
12.8, San Bernardino 6.1, and San Joaquin 6.0.
The Judicial Council reports that the state faces a "judicial
gap" that portends a number of disturbing long term
consequences: a significant decrease in Californians' access to
the courts; compromised public safety, an unstable business
climate, and, in some courts, enormous backlogs that inhibit
fair, timely, and equitable justice. According to the Judicial
Council, this judicial gap arises because the number of trial
court judges has not kept pace with population growth, and the
concomitant increased demands placed on the courts. Between
1990 and 2000, for example, California's population grew by over
16 percent. Yet the Judicial Council notes that the number of
new judgeships grew by less than three percent. (Even with the
50 new judgeships authorized pursuant to SB 56 added in, since
fiscal year 1990-91, the number of new judgeships has increased
by only six percent.) This gap is reflected in the following
examples provided by the Judicial Council in support of this
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legislation:
* In Butte County, between 2002 and 2004, felonies increased
22 percent, misdemeanors increased 8.6 percent, and juvenile
dependency filings increased 40.2 percent.
* In Kern County, since 1995, juvenile dependency cases have
increased 93 percent and overall juvenile filings have
increased 35 percent.
* In Kings County, since 2001, felonies have increased 71
percent, juvenile delinquency cases have increased 4.5
percent, and writ filings have increased 32.5 percent.
* In Placer County, overall court filings increased 9.6
percent from 2003 to 2004.
* In Riverside County, in fiscal year 2003-2004, felony
filings increased 5.2 percent and traffic filings increased
5.7 percent. There has also been a 9 percent increase in new
family law and domestic violence cases in the past 5 years.
And from 2004 to 2007 alone, the Judicial Council notes the
following statewide trends:
* Total criminal workload increased 8 percent, with 49 courts
experiencing growth in this workload.
* Total felony workload increased by 11 percent, with 52 courts
experiencing growth in this workload - the most work-intensive
of all criminal case types.
* Juvenile dependency and juvenile delinquency workload each
increased by 6 percent.
* 30 courts experience workload growth in probate and
guardianship matters.
Some of the consequences of this judicial gap, according to the
Judicial Council, include the following:
* In June 2004, Riverside County suspended all civil trials
to address a backlog of criminal trials. Access to civil
trials continues to be extremely limited.
* As of 2005, in Fresno County, 19.4 percent of civil cases
that were pending were filed prior to 2001.
* In Sacramento County, civil litigants must wait up to 18
months for trial.
* In San Bernardino County, each direct calendar judge has
875 cases pending trial, law and motion, or other hearings.
The Judicial Council asserts that passage of this measure will
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reduce court backlogs, promote the speedy resolution of civil
disputes, increase public safety, and foster a stable
environment for state businesses. As Chief Justice Ronald M.
George noted in his State of the Judiciary address last year:
"We have documented the need for additional [judgeships] to
enable the courts to promptly handle the ever-increasing
workload they face. The need is there?and it has not been
disputed. Having a sufficient number of judges available to
respond to cases filed by Californians and their public and
private agencies is a crucial component of access to justice."
The Judicial Council points out that its uniform and objective
assessment criteria contained in its 2001 and 2004 Judicial
Needs Studies identified a statewide need for 355 new trial
court judgeships. On February 23, 2007, the Judicial Council
approved an Update of the Judicial Workload Assessment, along
with a formal methodology for selecting courts with subordinate
judicial officer positions eligible for conversion (based on the
same judicial workload assessment). Even with the additional 50
judgeships added pursuant to last year's SB 56, the 2007 review
found that California's judicial need has grown, to over 360
judicial positions. The February 2007 report to the Judicial
Council can be found at the following link:
http://www.courtinfo.ca.gov/jc/documents/reports/022307item9.pdf
In consideration of the state's ongoing fiscal crisis, last
year the Council pursued only the most critically needed 150 new
judgeships, 50 each year for three consecutive years. Last year
the Legislature did indeed make this first "down payment" by
authorizing the first 50 judgeships in SB 56. This bill seeks
to authorize 50 more judgeships, along with kick starting the
SJO conversion process and adding an as yet unspecified number
of appellate positions.
New Judgeships Will Be Allocated Pursuant To Uniform Criteria
For Determining The Need For Additional Judges : This measure
currently provides for the appointment of the new judgeships by
the Governor to the various county superior courts pursuant to
uniform criteria established in statute by SB 56 of last year
and as updated and approved by the Judicial Council on February
23, 2007. According to the Council, these criteria were
established by the California Judicial Workload Assessment study
conducted by the National Center for State Courts. The Council
states that this study included a time study of more than 300
judicial officers in 18 different case types, since different
types of filings require different amounts of time. These time
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estimates were used to create case weights so filings data used
to calculate judicial need could be converted to workload
estimates.
Note, in order to limit the impact on the budget, funding for
implementation of last year's SB 56 was limited to one month's
funding, so the Governor has not made appointments as of the
writing of this analysis.
Need For Converting SJO Positions To Judgeships : According to
the Judicial Council, the court system, faced with a large
shortage of judges, has been forced to meet its workload demands
by appointing commissioners and referees to act as temporary
judges. However the Council notes this is not a viable long
term solution. Increased reliance on SJOs has resulted in many
critical court proceedings being heard by judicial officers who
are not accountable to the public. Statewide, SJOs typically
spend an average of 55 percent of their time serving as
temporary judges; in large courts the proportion is 75 to 80
percent.
In theory, SJOs are appointed to perform "subordinate judicial
duties," such as hearing small claims cases, traffic
infractions, and certain civil discovery issues. In practice,
however, many SJOs act as de facto judges and hear misdemeanor
and felony cases, family law matters, and civil cases, limited
and unlimited, upon stipulation of the parties. The Judicial
Council reports that where parties have refused to stipulate to
the use of an SJO, cases must be re-calendared, thus adding to
court congestion. Converting SJO positions to judgeships would
be more efficient in the long run and ensure that judges, rather
than SJOs, perform judicial work.
Recent Concern About the Substantial Lack of Diversity in the
State's Judiciary : When considering the merits of last year's
legislation seeking to authorize 50 new judgeships, the Speaker
of the Assembly and Chair of this Committee insisted that before
more judgeships would be authorized, new mechanisms would need
to be adopted to help address the lack of ethnic and gender
diversity within the judicial branch. As part of their efforts
to address this serious deficiency, unprecedented new diversity
reporting requirements were negotiated with and agreed to by the
Governor to begin the challenging process of addressing this
problem. The State Bar, the Governor's Office, and the Judicial
Council were all required to prepare and issue reports on the
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diversity of the judicial applicant pool and of the existing
judiciary.
Last month, in March 2007, these three reports were issued.
Copies of those reports may be accessed on the Internet at the
following Websites: the report by the Administrative Office of
the Courts is available on the California Courts Web site at
http://www.courtinfo.ca.gov/reference/4_38sb56.htm ; the
Governor's report is available at
http://gov.ca.gov/index.php?/press-release/5508/; and the report
by the Commission on Judicial Nominees Evaluations of the State
Bar ("JNE Commission") may be found on the Web at
http://www.calbar.ca.gov/calbar/pdfs/reports/2007_JNE-Demo-Report
_2006.pdf.
The Administrative Office of the Courts' (AOC) report contains
aggregate demographic data for the first time in the state's
history regarding the ethnicity and gender of California judges
and justices. The Governor and the JNE Commission also have now
provided unprecedented aggregate demographic data on the
ethnicity and gender of judicial applicants.
The AOC's report includes charts prepared by the AOC that show
the overall gender and ethnicity of justices and judges in the
Supreme Court, Courts of Appeal, and trial courts; the gender of
justices and judges by jurisdiction-for the Supreme Court,
Courts of Appeal by district, and trial courts by county; the
ethnicity/race of justices and judges by jurisdiction; and the
specific ethnicity/race reported by those justices and judges
who indicated that they considered themselves to be of more than
one ethnicity/race.
As noted in subsequent news analyses of the reports, the
counties of Alameda, Los Angeles and San Francisco were reported
to have the most ethnically diverse superior court benches among
California's large counties, while San Francisco has the highest
percentage of women. In Los Angeles, 39 percent of the judges
who answered the survey described themselves as ethnic
minorities. The breakdown was evenly distributed among major
ethnic groups: 7 percent Asian, 8 percent black/African-American
and 8 percent Latino/Hispanic, while 5 percent listed more than
one race. On the Alameda bench, 37 percent are minorities: 6
percent Asian, 16 percent black/African-American, 8 percent
Latino/Hispanic and 8 percent more than one race. (Scott
Graham, The Recorder, March 5, 2007.) According to these
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initial statistics, the least diverse superior court bench
amongst large counties is currently found in Contra Costa, with
82 percent of the bench reportedly not ethnically diverse.
According to the AOC, statewide, 11 percent of judicial officers
declined to identify their ethnicity. Riverside County
reportedly led the way in this category, with 18 of the court's
49 judges -- 37 percent -- refusing to state. However 32 courts
had a 100 percent response rate. While the numbers of blacks,
Asians and Latinos appears to be growing slowly, the Recorder
article notes that two other minority groups are "being left in
the dust. The survey counted only two Pacific Islanders among
the state's 1,486 superior court judges, and only two Native
Americans." (Id.)
As for women, San Francisco holds the distinction of being the
only large county with as many women as men (50 percent each).
Interestingly, as the Recorder article notes, the state's
governors "can't take too much credit here ? as at least eight
of the 25 women on S.F. Superior ? were elected to the bench."
The other superior court benches with large female presences
were Yuba (60 percent), Amador and Plumas (50 percent), Contra
Costa (46 percent), Marin (40 percent), San Mateo (35 percent),
Napa and Yolo (33 percent), Alameda, L.A. and San Diego (30
percent each), and Monterey, Santa Clara, and Stanislaus (29
percent).
There are also a remarkable number of trial courts in California
that have all male judges and no female judges. These superior
courts include: Alpine, Calaveras, Colusa, Del Norte, Glenn,
Inyo, Kings, Lake, Lassen, Mariposa, Merced, Modoc, Mono, San
Benito, Sierra, Sutter, Tehama, and Trinity. (Id.)
In a subsequent editorial on March 6, 2007, entitled "The face
of justice," the San Francisco Chronicle commented on other key
statistics brought out in the Governor's and JNE Commission's
reports regarding judicial applicants (accessible on the Web at:
www://sfgate.com/cgi-bin/article.cgi?f=/chronicle/archive/2007/03
/06/EDGRJN7AI21.DTL ) The comment stated in part that:
Walk into any California courthouse, and one thing is
plain. The judges on the bench don't reflect the
state's diverse make-up. In a state that is a
majority non-white, nearly three-quarters of some
1,600 judges are white males. Changing this fact
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won't be easy. It will take time, political commitment
and steady work. Last year, the state took a
constructive step forward: Some 50 new judges were
approved to speed up legal work in a jammed judicial
system. In exchange, Gov. Arnold Schwarzenegger, who
appoints all judges, promised Assembly Speaker Fabian
N??ez to push harder in diversifying appointments? Now
comes a report from the state Judicial Council, which
oversees the courts, giving a racial and gender
profile of the bench. There's a long way to go in
diversifying the system. The size of the gap depends
on the numbers used. The governor once measured his
success by comparing his picks with minority numbers
in the overwhelmingly white and male State Bar. By
this standard, he has done a credible job: the
percentage of Latino judges is ahead of the percentage
of Latino lawyers. It's also ahead for black judges.
But the overall results are exceedingly low. In a
state that's 32 percent Latino, only 6.3 percent of
the judges are from this group. Blacks, who are 8
percent of the state, make up only 4.4 percent of the
judges. The solution, according to Chris Arriola of
California La Raza Lawyers and other critics, is
better recruiting among the still-sizable pool of
minority members of the bar. He's encouraged that
Schwarzenegger has named Sharon Majors-Lewis, who is
black, as his judicial appointments secretary. The
governor has made a credible start, but he needs to
push harder to fill the bench with a truer reflection
of California's population.
The Los Angeles Times also editorialized on the startling lack
of diversity reflected by the newly reported data. In its
editorial entitled "Judges don't do justice to California's
diversity," the Times wrote on March 5, 2007, that:
Gov. Arnold Schwarzenegger's judicial appointments
have hardly reflected California's ethnic diversity.
Of his 209 appointments since taking office, only 15
have been Latino, while 15 have been Asian-American
and nine African American. That's under 20% of his
appointees, although California is a majority minority
state. Here's the rub: Schwarzenegger may be doing
the best he can? A governor's judicial appointments
must come from his pool of applicants, and
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Schwarzenegger's remains overwhelmingly white. That's
partly because most California lawyers are white - and
a decade ago even more of them were white. (Anyone
wanting to serve as a Superior Court judge must have
logged at least 10 years as a member in good standing
of the State Bar of California.) Last year, of the
328 judicial applicants to the governor's office,
13.4% were Latino, 10.4% were African American and
4.9% were Asian. (The figures are estimates because
some applicants decline to state their race.) ? These
percentages look good when compared to similar
percentages of members of the State Bar who are
minorities. But the numbers remain far below what
they would need to be to be representative of the
state's population as a whole.
And that could be trouble. In a society based on the
rule of law, it is crucial that judges, lawyers,
litigants and criminal defendants have faith that
courts can mete out justice impartially. That faith
can be undermined by a court system in which
successive generations of judges are
disproportionately members of one ethnic group and
litigants and defendants are overwhelmingly members of
another? Although Schwarzenegger can appoint only from
the applicant pool, he can encourage more Latino,
black and Asian lawyers to apply, as then-Gov. Jerry
Brown did in the 1970s. Schwarzenegger's efforts have
already helped to expand the minority applicant pool
from under 20% to 29%. He is doing better than his
predecessor, former Gov. Gray Davis.
Still, for a bench that better reflects the state's
people, there must be an even more representative
applicant pool - which in turn means more minority
lawyers, more diverse law schools and, ultimately,
schools that expand opportunity and encourage all
students to excel.
One thing at least is abundantly clear from the landmark data
secured by the Speaker and the Legislature last year in SB 56-
for the first time in the state's history, the Legislature, and
all Californians, will begin to see the severity of the
diversity challenge facing our judicial branch of government,
and can begin the process of evaluating what reforms may be most
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needed and effective in addressing this important and long term
challenge.
ARGUMENTS IN SUPPORT : The California Judges Association writes
in support of the bill stating that "The shortage of trial court
judgeships greatly diminishes Californians' ability to receive
court services. Currently, public safety is in jeopardy due to
the fact that there are not enough judicial officers available
for the great number of cases within the court system, including
criminal matters. The additional judgeships provided by AB 159
will ease calendar backlogs and improve public safety. AB 159 is
essential to preserve access to justice."
The Civil Justice Association of California (CJAC) writes in
support that "our members find themselves in California courts
on a large variety of civil matters. Many of these are complex
matters which are dealt with fairly only when a judge can devote
necessary time to the issues. Much has been done with
streamlining and special focus on complex litigation in larger
counties. But with a continuing heavy criminal caseload and the
demands of a growing population, additional judgeships are
undeniably necessary. We note that in the opinion of many of our
business members, a state with a judicial system that can
effectively and fairly resolve disputes is a state where they do
business. In order to have a system that is fair to both
plaintiffs and defendants in California's civil justice system,
we need enough judges to do the job."
Prior Related Legislation :
SB 56 (Dunn), Stats. 2006, ch. 390: Authorized 50 additional
superior court judgeships and required reporting on the
diversity of judges and the applicant pool for judgeships.
SB 1225 (Morrow), Stats. 2004, ch. 49: Clarified the duties and
definitions of subordinate judicial officers.
AB 1698 (Assembly Judiciary Com.) of 2002 would have authorized
the conversion of up to 250 SJO positions, but no more than 10
per year, died without hearing in Committee.
SB 1857 (Burton), Stats. 2000, ch. 998: Created 20 new trial
court judgeships and 12 new appellate court judgeships.
AB 1818 (Baca), Stats. 1996, ch. 262: Created 21 new trial
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court judgeships and 5 new appellate court judgeships.
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council (sponsor)
Alameda County Bar Association
Asian American Bar Association of Los Angeles County
California Judges Association
Civil Justice Association of California
Consumers Attorneys of California
San Bernardino Public Employees Association
Superior Court of California, County of Butte
Superior Court of California, County of Contra Costa
Superior Court of California, County of Fresno
Superior Court of California, County of Humboldt
Superior Court of California, County of Kern
Superior Court of California, County of Los Angeles
Superior Court of California, County of Merced
Superior Court of California, County of Monterey
Superior Court of California, County of Orange
Superior Court of California, County of Sacramento
Superior Court of California, County of San Diego
Superior Court of California, County of San Bernardino
Superior Court of California, County of San Francisco
Superior Court of California, County of San Joaquin
Superior Court of California, County of San Luis Obispo
Superior Court of California, County of Shasta
Superior Court of California, County of Solano
Superior Court of California, County of Sutter
Superior Court of California, County of Tulare
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334