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July 2019 Approaching the Bench - A View From the Bench: The First 100 Days

by the Honorable Kirk H. Nakamura

Transitions are difficult. Fortunately, the change in the Presiding Judge of the Orange County Superior Court only happens every two to three years. As a court, we have moved ahead quickly to fulfill an ambitious agenda. Here is a recap of the highlights of the first 100 days of being Presiding Judge of the third largest court in California and the seventh largest court in the United States.

1. Implementing a Night Judge Program

Last year I chaired a subcommittee of the Executive Committee investigating whether our court should employ a full-time evening night judge who would respond to search warrants, bail reviews, and now emergency protective orders (EPOs) requested during the off hours.

Using a full-time night judge allows our judges to be on call only on weekends rather than on weekends and during the off-court hours.

I decided to proceed to implement this program at the outset of my term. So far, it has been successful, and now nearly all of our judges are required to perform magistrate duty only on the weekends.

2. Conducting the First OCSC Strategic Campaign Meeting

Our judges were invited to a court-wide strategic campaign meeting after I had conducted a poll of our bench as to our mutual concerns and goals.

I had each of our supervising judges and our various committee chairs give a five-minute “speed advisement” of what was going on in their panels and committees. It is remarkable how large and complex our court has become. A judge could spend his or her entire career without much interaction with other panels or committees. We have an extraordinarily talented and dedicated group of judges who run our court. Without them, justice in Orange County would cease!

The judges were then split up into various panels to discuss operational problems and proposed changes.

The most important collective goal of our court is to assure access to justice for the residents of this county. On a personal level, many of our judges believed they were overworked and did not have enough time to adequately address the cases that were assigned to them. Their concern was particularly troubling in light of the Chief Justices’ new limitations on our use of assigned judges.

The conference was a success. Our judges appreciated the discussion and voted to have another similar conference every two years. Hopefully, later presiding judges will use this meeting as a model for future Strategic Campaign meetings.

3. Opening Family Law Departments at North Justice Center and Harbor Justice Center; Reopening Limited Civil Department at West Justice Center

Consistent with the Court’s goal of increasing access to justice, the OCSC has opened Family Law departments at the Harbor Justice Center and North Justice Center. These courts will enable persons seeking domestic violence restraining orders or other ex parte relief to quickly access a local courthouse. Judge Don Gaffney is sitting in the NJC Family Law Department. Commissioner Rene Wilson now sits at Harbor Justice Center.

Family law filings having parties adjacent to NJC and HJC will be scheduled to be heard at those justice centers in the future so that family law litigants will not have to travel to CJC or Lamoreaux Justice Centers.

A Limited Civil department has reopened in West Justice Center. This will allow litigants, including small claims litigants and unlawful detainer cases, to be heard in Westminster by Judge Kimberly Knill.

4. Forming a New OCSC Community Outreach Committee

Although our bench has consistently provided numerous hours in support of worthy organizations and causes throughout the years, many felt that the court should formalize its outreach efforts by creating a judicial community dedicated to community outreach.

Judge Elizabeth Macias chairs this committee, which has numerous judicial officers as members.

Most recently, the committee honored the high school students who participated in and won the California Judges Foundation (CJF) essay contest on judicial independence at Department 1 of the Central Justice Center.

5. Forming a Working Group Dedicated to Building a South Court

Another aspect of providing access to the courts in Orange County is the construction of a South Court in south Orange County. Currently, over 800,000 residents in south Orange County lack adequate access to a courthouse. The last courthouse constructed in Orange County was Lamoreaux Justice Center, which was completed in 1992, twenty-seven years ago. The expanding population of Orange County and the workload on the court makes building this facility necessary for the fair, accessible, and expedient administration of justice in our county.

A working group of interested judges has been formed to advocate for the construction of a new courthouse in south Orange County.

6. Pursuing Asbestos Abatement at NJC

As a result of a roofing project which came in 1 million dollars under budget, the Judicial Council was willing to allow OCSC to use the excess funds to abate asbestos at the North Justice Center. As a result, the OCSC closed several courtrooms for asbestos abatement and transferred three judges to CJC until the project’s completion.

The project is underway with an expected completion date in October.

7. Expanding CCB 1

Our award-winning collaborative courts, now housed on Main Street in Santa Ana in the old Buffum’s building, need to grow in order to support all of the eligible defendants for the various collaborative court programs, including drug court, mental health diversion court (WIT), veteran’s court, homeless court, etc. Judge Mary Kreber is the new supervising judge of all of the collaborative courts. Our new District Attorney, Todd Spitzer, and our Public Defender, Sharon Petrosino, support the expansion.

As a consequence, the court is presently in negotiations with the County of Orange for a new and larger facility.

8. Dealing With Emergencies Requiring the Implementation of the Court’s Continuity of Operations Plan (COOP)

The first 100 days required the court to assemble its various groups in Emergency Operations Centers twice. The first incident dealt with a suspicious package that emitted noxious fumes, which eventually caused a bailiff and two court personnel to be treated medically. The court immediately closed down a portion of the courthouse to deal with the threat. The second incident was an electrical failure that caused a blackout at CJC. The various groups assembled in our new Emergency Operations Center in the old jury assembly room to deal with the outage, which required the rush order of a dated electrical switch. We are in the process of updating and equipping the emergency operations center to better deal with such emergencies.

9. Adjusting to the New Limitations on the Assigned Judges Program

Approximately one year ago, the Chief Justice implemented new limitations on the use of assigned judges throughout the state. The assigned judges program allows retired judges to assist our court if they are approved to serve in the Chief Justice’s program. The new restrictions included a retroactive implementation of a lifetime service cap of 1,320 days for every assigned judge in the program. Eight of the assigned judges whom our court regularly used had already served in excess of 1,320 days and, therefore, could not be used any more by our court. Moreover, those assigned judges who had served fewer than 1,320 days total were subject to a new cap of 120 days of yearly service, when previously there was no limit on the days we could use an assigned judge on an annual basis. The Chief Justice also issued the directive not to continue to use assigned judges on an operational basis and provided a limited guarantee to our court of 1,500 assigned judge days.

The OCSC had used approximately 2,600 days a year for the past eight years. As a consequence of these directives, the court has hired three new commissioners and converted three vacant commissioner positions to judgeships. Additionally, the court has interviewed, selected, and ranked some twelve possible commissioners out of over 100 applicants for the position.

The OCSC has also received commitments from several retired judges to work as volunteers for the court.

We have also selected close to 100 additional temporary judges to assist the court. Much of the recruitment is due to the efforts of our most productive temporary judge, Michael Balmages, who approached several bar committees and organizations to publicize our need. Judge Claudia Silbar has worked tirelessly with the Temporary Judge Committee to select and train these temporary judges.

What is gratifying from this Presiding Judge’s standpoint is the support we received from the retired bench and our bar when the court was faced with this difficult situation. I am reminded of the response of the bar to the court’s call for help during the foreclosure crisis over a decade ago. Judge Firmat and I implemented the Foreclosure Relief Settlement Program in 2008, and we attempted to recruit attorneys to help mediate the overwhelming number of foreclosure cases that our court faced. There was an overwhelming response by attorneys of our bar who were willing to help. The bar has always been there to assist our court whenever we are in need.

The audit of the assigned judges’ program, which led to changes and limitations, is complete. I am optimistic that the program limitations will be applied judiciously in the future so that the court can continue to use assigned judges when needed to fill judicial vacancies due to retirement, vacations, and judicial education.

10. Bidding Farewell to Judges Perk and Brooks

The court must acknowledge the passing of Judges Steve Perk and James Brooks. Their contribution to the court was substantial and will always be remembered.

11. Addressing Changes to Pretrial Detention, Propositions 66 and SB 1437

Judge Richard King remarked to me that the criminal legal system has endured more changes in the last five years than he had seen in the prior thirty-five years of his legal career.

Judge King’s statement is certainly true. SB 10 (replacing money bail with a system based on public safety risk) would have radically changed pretrial release procedures had not a referendum been placed on the ballot delaying the implementation of SB 10 until at least October of 2020. We have had estimates of having to hire up to thirty employees to implement this law.

Proposition 66, which presumably expedites the imposition of the death penalty, will require expedited processing of death penalty appeals and places the burden of hearing habeus corpus petitions on the trial courts. Although Governor Newsom has placed a moratorium on the death penalty executions while he is in office, the court still must fulfill its obligations under Proposition 66 and hear these habeus corpus petitions. This will eventually require reviewing voluminous court records and setting hearings on over 100 death penalty appeals on an expedited basis.

SB 1437 requires resentencing defendants convicted under the Felony Murder rule as an accomplice in certain situations. This change could require hearings in over 1,200 cases of defendants convicted of murder.

After the First 100 Days, What Next?

The foregoing is a glance at the goals and accomplishments made in the first 100 days of my being Presiding Judge.

We have a fantastic group of administrators and supervising judges. Judge Fred Slaughter in NJC, Judge Terry Flynn Piester in WJC, Judge Matt Anderson in HJC, Judge Joanne Motoike in Juvenile (actually a presiding judge), Judge Lon Hurwitz in Family Law, Judge Gerald Johnson in Probate Judge James DiCesare in Civil, and Judge Kim Menninger in Felony/CJC. I can trust and depend on each one of them to make the right decisions at any time. Our committee chairs are likewise doing a fine job.

This article did not touch on the several grant-funded projects being developed by our technology staff, the labor negotiations that are ongoing, and the operational difficulties of a high vacancy rate our operational staff must handle. David Yamasaki is a skilled and experienced CEO. Darren Dang, our CFO, not only keeps the court financially sound, but is also an expert in data analytics, which is becoming essential for data-based decision-making. Shannon Mays Fontaine is an excellent HR Chief. Adriaan Ayers is an exceptional operations chief, and Brett Howard keeps our court at the cutting edge of court technology.

Our Executive Assistants, Catalina Rogers and Leslie Hernandez, are outstanding. Moreover, I would be remiss if I did not mention how much I rely on my Assistant Presiding Judge, Erick Larsh, who enthusiastically and tirelessly assists me in almost any endeavor I might propose!

In just 100 days, there have been significant changes at the court. A quote that comes to mind is one invoked by Robert F. Kennedy that poses the question: Some people see things as they are and ask “why?”; I see things that never were, and ask “why not?”

When our new judges’ Judicial Orientation Program was rated as a seven out of ten by our new judges after they completed it, I immediately made changes to the program. “We are not a seven court,” I said to our staff, “We are a ten court.” That will always be my goal for our court: to always have a rating of ten out of ten. With the extraordinary talent we have at our court, and the excellent relationships we have with our justice partners and the bar, all I could say is “Why not?”

The Honorable Kirk H. Nakamura is Presiding Judge at the Orange County Superior Court.

Approaching the Bench is an occasional column that offers insight into local courts or litigation best practices.