Newsom has struggled to replace departing judges

Gov. Gavin Newsom found himself on a judicial appointments treadmill in 2023: he's been appointing judges faster than any governor in recent history, but he's barely kept up with a historic wave of retirements.

According to retiring judges and people managing the alternate dispute resolution firms that often affiliate with them when they retire, there are several reasons for these high numbers. These include high caseloads, burnout from the COVID-19 pandemic, generation turnover, retirement laws, and the financial lure of the private sector.

Through Dec. 26, Newsom has appointed 134 superior court judges and 12 appellate justices in 2023. This total of 146 is the most since Gov. Jerry Brown appointed 193 judges and justices in 2018 and the first two days of 2019. But was in his last year before terming out of office; governors on their way out typically fill nearly every seat on their way out the door. This left Newsom with just eight vacant superior court seats at the end of his first month in office.

According to figures compiled by the Daily Journal, at least 87 California judges and justices have retired this year through November -- a number will probably rise significantly once retirements through the end of the year are tallied -- along with four deaths among sitting judges. The Daily Journal tracked 53 retirements and one death in 2022, and 43 retirements and three deaths in 2021.

According to the monthly Judicial Vacancy reports published by the Judicial Council, there were 125 vacancies on Jan. 1, 111 on superior courts and 14 on the appellate bench. On Nov. 1, the most recent date currently available, there were 95 open seats, 89 on superior courts and 6 on the appellate bench. The vacancy numbers could drop again when they are adjusted to reflect 18 superior court judges and two appellate justices he appointed on Dec. 7.

But the roster of vacancies could also rise again. December and January typically see a wave of retirements. That could be particularly true starting Jan. 1, when a new judicial retirement law goes into effect. AB 2443 may have been inspired partly by recent stories of judges with significant health problems staying on the bench until age 65 in order to qualify for full retirement benefits. Though that also suggests that some of the judges who take advantage of AB 2443 will do so because of health issues -- and won't move on to the demanding world of private dispute resolution.

Leaders with alternate dispute resolution firms -- Rosemarie Chiusano, co-founder and executive vice president of business development with Judicate West, JAMS President Kimberly Taylor and Signature Resolution CEO Dario Higuchi -- said they're hearing from judges who say they will take advantage of the new law.

"In my opinion it's driving a lot of judicial retirements," Higuchi said. "I feel for the court system. I think this is going to be a difficult year."

But many this year's retirements were among judges already eligible to retire under the older rules. Gov. Gray Davis filled nearly every judicial slot when voters recalled him in 2003, meaning those judges now have 20 or more years in. Davis often chose experienced civil attorneys with backgrounds sought out by alternate dispute resolution firms.

This year's crop of retirees have also included many judges appointed by the man who replaced Davis, Gov. Arnold Schwarzenegger. One of them, former Sacramento County Superior Court Judge David I. Brown, told the Daily Journal earlier this year that it made financial sense for him to retire in 2021 even without being fully invested in the state's retirement plan. Brown said he "wasn't dissatisfied" with his job, but that his wife would have gotten lesser financial and health benefits if he died in office. He has since joined JAMS' growing Sacramento practice.

There are judges who have stayed on for years even when it was against their financial best interests. When he retired in 2021 at the age of 83, 1st District Court of Appeal, Division 2 Presiding Justice J. Anthony Kline told the Daily Journal he "fully vested 20 years ago" and he had essentially been "paying money to stay here" ever since.

But there may be fewer judges like Kline in the future. Lucie Barron, founder and president of ADR Services, Inc., said that when she started her company almost 30 years ago, sitting judges never approached her about work. Now it happens regularly. Many tell her they took the bench with the long-term goal of transitioning to private dispute resolution. The field is no longer just a "part-time hobby" judges take up when they retire, she said.

She added that workload is one reason many are making the jump now.

"They are very stressed," Barron said. "The money is not there. The support is not there. The court clerks are not available, the research attorneys.

Barron and Chuisano both said they've spoken to judges carrying 900 to 1,000 cases. Chuisano added that civil judges have told her that when they get a new case, they can't set a trial date until 2025 or even 2026.

Judicial workloads can be difficult to track. They can vary between counties and different assignments. But the Judicial Council's annual Court Statistics Reports suggests some clear and perhaps counterintuitive trends. The latest report shows filings and dispositions have fallen significantly over the past decade, both overall and on a per judge basis.

But unlimited civil filings are up--and it appears courts are doing everything they can to deal with these cases quickly. During the 2020-21 fiscal year, just 45% of unlimited civil cases were disposed of before trial. From 2021-22, the most recent year for which numbers are available, 81% of unlimited civil cases were disposed of before trial.

The numbers also show that automobile-related cases have also risen. Criminal filings have fallen, but criminal courts are having trouble getting through all of their cases -- especially felonies.

The largest drops have come in unlawful detainer and small claims cases. These cases tend to take up less time on average than complex civil manners. Both of these case types saw long-term declines followed by steep drop-offs during the worst of the COVID-19 pandemic. But the latest report showed both unlawful detainer and small claims began to shoot up again in 2022, partly because of eviction moratoria expiring around the state. Attorneys representing landlords say the courts in some urban counties are now so backed up they can't get in front of a judge.

The figures also show a growing backlog of some kinds of family law cases, notably divorces, child custody and dependency cases. That's despite filings in these areas falling in recent years.

This hasn't gone unnoticed by Newport Beach-based family law attorney Mark E. Minyard. He said the job of family law judge is notoriously stressful. He added that dispute resolution firms have begun recruiting these judges to handle a growing practice in high-end divorces and child custody cases.

"In family law, the judges work more hours, nights and weekends," said the founder and managing partner of Minyard Morris LLP. "They're burned out."

The problem has grown so bad that earlier this year he hired Jason Kinney, a partner with Axiom Advisors in Sacramento to help get more family law judges appointed. The firm offers services like lobbying and consulting, though Axiom does not list Minyard as a lobbying client.

Reached last week, Minyard said he remained in contact with Kinney, who is known as a good friend of Newsom's. While Kinney has "never taken credit," Minyard said, Newsom has appointed nine new Orange County judges recently. Minyard added that he is very happy with the quality of the people the governor chose.

"The net result is all I care about," Minyard said. "My objective was to be a squeaky wheel."