Just like the federal government, California has three branches of government: legislative, executive and judicial. Article VI of the state constitution provides for the judicial branch of government. As we learned in our high school civics course, the judicial branch has authority to interpret the laws of the state.
With a population just shy of 40 million people in this state, it is not a surprise that California’s judicial branch of government is the largest in the country, handling over 10 million criminal and civil cases each year. There are more than 2,000 judicial offices in this state and over 18,000 employees of the judicial branch. The court system in this state is led by the Chief Justice of the state Supreme Court.
There are three levels of courts in California: Superior Courts (which serve as the trial courts); Courts of Appeal (the intermediate appellate courts); and, the Supreme Court (the highest court in the state). The administration of the courts, including the adoption of court rules, is overseen by the Judicial Council.
There are also several support entities for the judicial branch of government in this state. The Commission on Judicial Performance; Commission on Judicial Appointments; State Bar of California; Commission on Judicial Nominees.
California initially had a Supreme Court of only three justices, but eventually in the late 1800s a constitutional change established a 7-member high court with 12-year terms. The Supreme Court’s decisions were also required to be in writing, as that was not a requirement earlier. In the early 1900s, the Courts of Appeal were created. Around that time, the current system of gubernatorial appointments of justices was adopted.
The Superior Courts, of which there are over 400 locations and over 2,000 judges, are located in each of the 58 counties of the state. These trial courts have jurisdiction over criminal and civil cases, including specialized areas such as family and probate law. Cases are tried before juries and judges. Superior Court judges are appointed by the governor when a vacancy occurs and they serve six-year terms. These trial court judges are also elected by county in general elections.
The Courts of Appeal are located in six districts (numbered one through six) and those six districts cover the entire state. These intermediate appellate courts have jurisdictions over appeals from cases tried in the Superior Courts. They also have jurisdiction over cases of habeas corpus (challenging the confinement of someone), mandamus (forcing an official duty), prohibition (restraining action), certiorari (review of a judicial action), and challenges to decisions of certain state boards: Workers’ Compensation Appeals Board, Agricultural Labor Relations Board, Public Employment Relations Board, Department of Alcoholic Beverage Control, and some decisions of the Public Utilities Commission.
The Courts of Appeal Justices are appointed by the governor and confirmed by the Commission on Judicial Appointments. At the end of their terms and in gubernatorial elections, the justices must also be approved by the voters. There are just over 100 justices who serve on the appeals courts.
Finally, there is the state Supreme Court, which is the highest court in the state. Among its numerous duties, the Supreme Court must review all death penalty cases. However, the high court has discretion to review appeals from the state’s Courts of Appeal. Cases from the appellate courts are based upon petitions for review and the justices decide to accept or decline the case at their weekly conferences. Only a small number of cases are accepted for review.
The chief justice and six associate justices of the Supreme Court are appointed for 12-year terms by the governor after review by the State Bar’s Commission on Judicial Nominees Evaluation. Appointees are then confirmed by the Commission on Judicial Appointments. At the end of their 12-year terms, justices may also stand for election and continue to serve.
The Judicial Council of California is the administrative office of the court system. The Judicial Council has 21 voting members and six advisory members and is chaired by the state’s chief justice. The Administrative Office of the Courts provides policy support, handling budgets, fiscal services, technology, education, human resources, research and much more.
Other agencies that support the judicial branch of state government include:
- Habeas Corpus Resource Center, which exists to represent anyone who can’t afford to hire appellate counsel in capital cases;
- The Commission on Judicial Performance, charged with investigating judicial misconduct or incapacity and imposing discipline or making recommendations;
- The Commission on Judicial Appointments, which approves the governor’s appointments to higher courts, or not.
- The State Bar of California is also considered part of the Judicial Branch, although it is a public corporation. The State Bar examines all candidates who want to practice law, and all attorneys licensed in California must join the State Bar. It formulates and enforces rules of professional conduct.
The judicial branch receives over $3 billion in funding each year, with roughly $2.8 billion being provided to the trial courts. Just over $200 million is allocated to the appellate courts throughout the state.
Choosing Judges in California
Members of the California judiciary are selected in one of two ways. The first is for trial judges, those of the Superior Courts, and the second is for appellate court justices. Trial judges are elected by voters at an election (for six-year terms), which is a non-partisan race pursuant to the state constitution, and vacancies in the superior court are filled by appointment of the Governor.
For appellate court justices, those of the Courts of Appeal and the Supreme Court, they are appointed by the Governor and then evaluated and confirmed by the Commission on Judicial Appointments. For the more than 1,500 Superior Court judges, their terms begin on the Monday after January 1 following their election. For appellate court justices, their terms begin when the Appointments Commission files its approval with the Secretary of State.
The seven Supreme Court justices and the 102 Courts of Appeal justices are first evaluated before a gubernatorial appointment. The Commission on Judicial Nominee Evaluation (aka the “Jenny Commission”) is required to investigate the prospective nominee’s background and qualifications for the judicial appointment.
There are four levels of ranking by the Commission and that ranking is provided to the Governor. Although these rankings do not bind the hands of the governor, the appellate court appointment is eventually decided by a majority vote of the Commission on Judicial Appointments.
When filling a vacancy, the justices must face a retention election at the next gubernatorial election. Thereafter, these justices must stand at a retention election every 12 years. The qualifications of both trial court judges and appellate court justices are the same, which is they must have ten years of experience as a law practitioner or as a judge of a court of record. Of course, they must be licensed to practice law in this state.
Role of the Judicial Branch in the Lawmaking Process
Members of the state and federal judiciary branches play a role in the California lawmaking process as a part of our government’s system of “checks and balances.” When California statutes or regulations are legally challenged, for example, then the state or federal court that makes a determination establishes a policy for the state. Of course, California statutes and regulations may be challenged on either federal or state constitutional grounds. As a result, both state and federal courts may play a role in the state lawmaking process.
In addition to a legal challenge, both federal and state courts may be called upon to interpret California statutes or regulations. The judicial branch of the state and federal governments is granted its authority by the California and U.S. constitutions. In addition, the powers and duties of the judicial branch are enumerated in federal and state statutes. Statutory interpretation is the primary role of the judicial branch of government in the state lawmaking process. In fact, the courts are regularly called upon to interpret state statutes and regulations.
Sometimes to the dismay of elected officials in the executive and legislative branches of government, the third branch of government does play a crucial role in the state lawmaking process when the courts determine what the legislative intent was of a statute, whether a regulation comports with the Administrative Procedures Act, or whether a statute or regulation is constitutional. This is the critical role of the judicial branch in the state lawmaking process.
Occasionally, the California Legislature passes a law that do not comport with the state or federal constitutions. Despite claims by judges that they leave lawmaking to the elected branches of government, when judges modify statutes or provide a determination of how a statute or regulation is to be interpreted and applied, then judges do in fact become a critical part of state policymaking. Hence, all three branches of government play a role in developing state policy.
When a statute, regulation or government action is found to violate a provision of the Constitution (either the federal or state constitution), the courts will not only invalidate the law, regulation or executive order, but may also impose injunctive or other relief that is tantamount to a new public policy being adopted. When provisions of law (primarily statutes or regulations) are unclear in certain respects, the courts will engage in statutory interpretation to clarify the law and do its best to determine what the legislative intent was in adopting the statute. Sometimes the court’s interpretation is tantamount to a new public policy being issued.
Generally speaking, the California courts are not really vested with the power to legislate, as this authority would conflict with the constitutional separation of powers, and those are the roles of the legislative and executive branches of state government. However, the courts can and do become involved in developing public policy. And when they do, that policy has the same effect as a statute adopted by a legislative body.
For instance, the landmark case of Serrano v. Priest, 5 Cal.3d 584 (1971) originated as a class action brought by public-interest attorneys on behalf of a class of all California public-school pupils. The case involved pressing issues of the day: public education as a fundamental right and discrimination against poor and minority students. The California Supreme Court struck down California’s public-school, general-fund financing structure as a violation of the state constitution’s equal protection guarantee.
Under this system, per-pupil expenditures varied greatly and depended on a school district’s tax base. These kinds of tax-base disparities resulted in significant inequalities in actual educational expenditures on a per pupil basis from school district to school district around the state. The Court’s decision (including a follow up 1976 decision) in Serrano essentially gave instructions to the California Legislature on what would be required to fix the state funding statutes, and the Legislature subsequently did so.
The other major way in which the courts make state public policy is through statutory interpretation. In this instance, there is a statute or group of statutes which is unclear or silent on some aspect of policy. The court is asked to fill in the gap (i.e., to discern the intent of the legislature). Thus, to invoke this approach, the plaintiff challenging the statute will need: (a) a statute or statutory scheme which is unclear or silent on some public policy matter, and (b) a cause of action and standing to sue.
Finally, while the federal courts may be limited in terms of their ability to adopt or create policy, they often have a profound role in terms of public policy. In particular, newly-adopted statutes, regulations, and executive orders are often challenged in the state and federal courts. For parties or interests that lost in the legislative process, the courts have long been used as a means of preventing adopted policy from going into effect.
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