Lockyer sees '97 criminal
The Judicial Nominees Evaluation Commission should be preserved as an independent review body because Gov. Pete Wilson is "overly political" in appointing judges, says the top Democrat in California politics. Charging that the Republican governor has asked potential judicial appointees to change their party affiliation, Sen. Bill Lockyer, D-Hayward, says he favors preserving JNE's ability to serve as a check on the appointments process.
In a wide-ranging interview with the California Bar Journal, the president pro tempore of the state Senate made the following observations about the coming legislative session:
Lockyer wields tremendous power as both president of the Senate and chair of its Rules Committee. As longtime head of the Senate Judiciary Committee (he attended law school and passed the bar exam while serving as chair), he also is an expert on a variety of legal issues, particularly tort reform and crime.
Defense of JNE
Asked about current scrutiny of the JNE commission in the wake of scathing criticism of the panel for rating "unqualified" a Wilson nominee to the Supreme Court, Lockyer shot back.
"This governor is overly political in his judicial selections," he said. "Many lawyers are told they have to re-register as Republicans" in order to win a judicial appointment.
"This is unlike the policies of any other governor."
As a result, Lockyer said JNE should continue to serve as a check on Wilson's appointees and maintain its independence.
Lockyer said two issues requiring quick legislative attention are holdovers from the last session: he has introduced bills seeking both emergency and long-term funding for the state's courts, and a measure to continue immunity for arbitrators while also providing limited appeals rights from arbitration rulings.
Court funding died in the last session in a dispute between Lockyer and Wilson over the governor's opposition to a provision to restore collective bargaining rights for court employees.
"He's worse than Ronald Reagan on [some] issues," Lockyer says. "He didn't want it to come to his desk." The measure did not come up in the Assembly, although it cleared the Senate.
A grand plan
In early December, Lockyer re-introduced what he described as "the grand plan" for long-term court funding.
At the same time, because courts in some counties anticipate a funding crisis in the spring, Lockyer authored an urgency measure to allocate $146 million to cover those shortfalls.
Efficiencies to make the justice system more user-friendly, such as telephonic trial-setting and case management conferences, should be put in place with the funding, he said, although no bills have been introduced to do so. Courts already have the discretion to take such steps on their own, Lockyer said, but he believes "it's time to mandate" some changes.
A second key issue, which also died at an impasse last session, is immunity for arbitrators, favored by both Lockyer and Republicans.
But Lockyer wants to link it to a reversal of the California Supreme Court's 1994 decision in Moncharsh v Haily and Blase, which denies aggrieved parties in arbitration proceedings the right to appeal.
"If arbitrators are going to have immunity as judges have immunity, there ought to be an appeals process of unjust results," Lockyer says. His bill would do both by adopting the Kennard dissent from the Moncharsh ruling, which provides limited appeal rights if an arbitration award is "manifestly erroneous and results in a substantial injustice."
Tort reform glut
The Senate leader said he expects the usual glut of tort reform proposals, but he favors a go-slow approach. A friend of trial lawyers, Lockyer pointed out that about 60 laws have taken effect during the last decade to gradually achieve what he feels is a fair balance between business interests and consumers.
Two areas which do merit further examination are construction defect and securities litigation, he said.
But reformers seeking quick, simple changes won't get far, Lockyer warned.
"Special interest groups come in with a slogan and an anecdote and expect radical changes in traditional doctrines," he said. "The plural of anecdote is not evidence."
A running battle
Lockyer has had a running battle with tough-on-crime legislators whom he accuses of gutting California's higher education system to pay for building new prisons and hiring new guards.
Any changes in criminal law must be viewed against this fiscal backdrop, he said.
"In the last six years, we've created 10,000 new jobs in the prison system, funded by cutting 10,000 positions from the state college system. This is a long-term disaster and we need to adjust it."
He expects the coming session to bring bills for non-unanimous criminal juries, changing the number of peremptory challenges and enhancing the juror pool.
An early attempt
But he noted wryly that the first bill he introduced in 1974 after his election to the Assembly would have required employers to continue to pay jurors' salaries during their jury service. The bill died and 22 years later it's still an issue, he laughed.
Lockyer believes Republicans will attempt to reverse last year's Romero decision permitting judges to overlook a defendant's prior convictions "in the interest of justice." He favors focusing three strikes cases on the most dangerous and violent felons.
"It's very clear that virtually everyone in the legal community and voters favor appropriate judicial discretion," he said. "But how the legislature will fall on the issue I don't know."
Indeed, how any of this will play in the legislature is uncertain. Repeated efforts to obtain an interview with the Assembly's new speaker, Cruz Bustamante, were unsuccessful.
And measures forged by the Democratic majorities in both houses will likely face vetoes by a hostile Republican governor.