CACJ Update on Executive and Judicial Orders - March 29
Sunday, March 29, 2020
Update on Executive and Judicial Orders - March 29
There is much cause for concern in Governor Newsom’s Executive Order N-38-20 on Friday 3/27 and the adoption of temporary policies by the judicial council on Saturday, 3/28. In brief, the Governor removed barriers /ceded power to the Judicial Council to direct the activities of the courts throughout the state, and the Council adopted rules extending some statutory and constitutional deadlines, and encouraging the use of technology to avoid situations where visitors, staff, judges, defendants and/or attorneys may not be able to maintain “social distance” while handling court business.
Rest assured that your leadership (and CPDA under President Oscar Bobrow) submitted comments to the judicial council Friday night opposing many of the proposed measures and laying out recommendations that would preserve constitutional rights of inmates to timely appearances. [CACJ letterhere] Nevertheless, in a well-orchestrated meeting on Saturday afternoon, the Chief Justice got a unanimous vote of the council to adopt the recommendations as presented. (The meeting itself was well-orchestrated. The conference-call technology was a total failure and took over 30 minutes to correct.)
So is this a good thing? A bad thing? Or is the sky falling?
I urge everyone to stay calm, and stay focused on handling each of the barriers thrown up to reason and justice where they adversely effect a client. After all, that is what we do. We have a large institution with many actors with discretionary powers and a serious health crisis moving among us. Over the last three weeks we have seen some courts making terrible decisions (“the courts are closed” “the jury trial will continue”) and refusing to follow intelligent guidance from the Chief Justice on March 20, including advice to set the bail schedule for many crimes to $0 so jail populations can be significantly reduced.
Well, the C.J. and council are now in a position to tell them all what to do, rather than merely recommend. So courts will be open, and critical matters regarding custody, and timely hearings and trials will have consistent treatment statewide. Hopefully there will be a spreading movement toward releasing far more pre-trial inmates without bail, or with bail they can afford.
The Governor’s order [found here] has five parts:
Any limitation on the subject matter which the Chairperson of the Judicial Council can address in an emergency order or statewide rule under Government Code §68115 is suspended;
Removing any restrictions on the rulemaking authority of the Council or the Chairperson for emergency statewide or local rules or orders extends the authority for rulemaking to the maximum under Cal. Caonst. Art. VI sec. 6;
Any emergency rules or orders in conflict with a statute automatically suspend that portion of the statute for the duration of the emergency;
CCP §§ 2025.310 and 1010.6 are suspended to allow deposition by telephone and electronic service;
All existing rules remain in effect except as adopted by the Council or Chair.
The Council adopted verbatim the recommendations under “A” and “B” in the Report to the Judicial Council for the meeting March 28. [found here] Part “C” was to ask the Governor for an order, which he had already done, so this was not considered. The adopted policies are:
In follow-up questions the Chief Justice indicated that the extended times for arraignment and prelim should only be utilized as required. So delays will be subject to attack if they exceeded the statutory time, were objected to, and there were not sufficient facts to justify delay beyond the normal time1. For example, if a video arraignment is available within 48 hours that should be utilized, rather than invoking the expanded time in order to arrange for safe transport and appearance.
firstname.lastname@example.org As you face new policies and action in your local courts please keep us updated at by sending news articles, email describing a problem, or pleadings you have filed for relief on bail or other issues. We will keep this resource page updated with links to any material that may be useful to you.
1 Associate Justice Marsha G. Slough (4th Dist., Div. 2), who chairs the Council’s Executive and Planning Committee, stated that the intent of the proposal was that trial courts remain “open and provide relief, to function---not as a shuttered business office---but rather function as what I’ll call true beacons of justice.” Justice Slough further stated the intent was that the Council's action “open doors of justice and is not used to delay justice a second longer than what may be necessary” and “these extensions are not a license to wait.” The Chief Justice concurred fully and added that “we are courts and we are open in a crisis.”