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Six retired judges occupied 13 of Santa Clara Superior Court’s highly sought felony trial assignments last year. When the new PJ doled out court assignments for 2003, there were few surprises: Once again, the sought-after assignments went to senior judges, while newer judges were stuck in the least desirable posts. And once again, Presiding Judge Thomas Hansen filled six of his 13 felony trial slots with retired judges. Despite court policies on assignments, seniority continues to reign supreme in Santa Clara, and that’s not sitting well with junior judges. “Retired judges get to do the good assignments,” said one Santa Clara Superior judge frustrated with the assignment system. “In other counties, that doesn’t happen. They are doing the arraignment calendar, and the permanent judges get to do the trials.” Hansen admits change is overdue. “Traditionally, in deference to their long experience, retired judges have been assigned primarily felony trial assignments. I don’t disagree with those who feel that ought to change,” Hansen said. “I am not suggesting that we change that tomorrow, but I am in agreement that some retiring judges who want to sit on assignment, they ought to be handling misdemeanors.” Instead, newer judges end up in misdemeanor and family court spots regardless of their expertise and backgrounds. Santa Clara isn’t the only court struggling with assignments in the wake of court unification. In the past few years, Gov. Gray Davis’ appointments secretary, Burt Pines, has chided presiding judges for sticking with seniority, saying it makes it harder to recruit top lawyers to the bench. Pines, who singled out Alameda County’s seniority system in particular, even pushed the Judicial Council to adopt a rule two years ago banning pecking orders based solely on seniority. “I had heard through various sources that the senior rule was a disincentive for applicants applying for a trial court position after unification. There was a fear it could take many years before a new judge would get the big cases,” Pines explained. “A number of presiding judges have assured me they are making assignments based on merit, and seniority is no longer the key factor.” But in Santa Clara, the rule seems largely ignored. For example, four of the six civil law specialists that the governor has put on the Santa Clara bench — ex-McManis Faulkner & Morgan partner Erica Yew, ex-McTernan, Stender, Walsh, Weingus & Tondreau partner Brian Walsh, ex-Skjerven Morrill partner Randolf Rice and ex-Fenwick & West partner Patricia Lucas — are assigned to criminal misdemeanor trials. The other two, ex-Huber Samuelson partner Joseph Huber and ex-Bingham McCutchen partner James Kleinberg, are assigned to domestic violence and family law, respectively. In fact, only one of Davis’ 14 Santa Clara appointments former deputy DA Paul Bernal has received a felony trial assignment; no Davis appointee is now in a civil assignment. Meanwhile, the use of retired judges to handle the felony trials last year cost taxpayers an additional $1 million, since retired judges draw $513 a day on top of their regular retirement pay. The court’s assignment preference protocol is outlined in an internal judges’ manual. The court’s 79 judges are divided into tiers of eight based on the date they joined the court. Each year at reassignment time, the top tier is rotated to the bottom. Judges closer to the top of the list are to be given more consideration for requested assignments. However, the presiding judge also weighs experience, ability and the needs of the court. Adding to the complexity, a deal struck in 1998 during the move toward court unification stipulates that no former superior court judge can be assigned a former municipal court spot without first agreeing to the change. Newer judges call the assignment protocol a joke. “As a judge, you consider the rule of law. Everything is based on fundamental fairness, so you expect it to be that way here,” said one judge. Assistant Presiding Judge Alden Danner says he is sympathetic. “I can certainly understand their position. We’ve been consolidated since 1998. The judges who are doing the early criminal arraignments and preliminary hearings are superior court judges now, and they are expected and entitled to do the work of the superior court,” said Danner, who has a criminal trial assignment. “It’s become an issue the last couple of years, and it’s a valid position.” Danner said the court needs to examine ways to make assignments more equitable. “The court is open to more than one suggestion. We don’t want burnout,” he said. “The former municipal court rotated some assignments more frequently than once a year.” But Danner and Hansen said change can’t come at the cost of efficiency. “The big problem is assigned judges are doing a lot of work,” Danner said. However, the current budget crisis will likely force the court to pare down the number of retired judges sitting on the bench. There are fewer vacancies now than in the past couple of years, making it harder to justify the added expense of assigned judges. Danner and Hansen say that retired judges have indicated they are willing to take any assignment they have experience with. “Some have never done those types of high-volume calendars,” Danner said, referring to some of the less sought-after positions. “They are a little reluctant to do some of those things.” But the promise of change rings hollow to some of the newer judges. “I have no reason to believe there is action being taken behind this statement,” said one judge. “If an assigned judge is better suited, I have no problem. But if the decision is being made because assigned judges won’t sit if they won’t be given choice assignments, that’s the wrong position,” this judge added. “There needs to be an agreement on the court how assigned judges fit in the preference system.” Newer judges say most of their peers share their discontent about the assignment system, but are wary of complaining. One judge explains: “It’s a whistle-blower thing. Do I want to be the person ostracized?”

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