Transition to a Family Department of the District Court
The following plan for transition to a family department of the district court meets the conditions upon which the Commission on Justice in the Twenty-first Century recommended the integration of the juvenile court with the district court. (1)
The task force urges the Judicial Council to adopt this report and establish enabling legislation as a priority legislative goal. In the interim, districts should be permitted, but not required, to establish what is in essence a family department of the district court based upon voluntary assignment by the Chief Justice of judges of the district and juvenile courts to adjudicate cases within the jurisdiction of the other court.(2)
The Sixth Judicial District has had a family department since 1992 through just such a device. Districts establishing a family department by this means should design the family department in conformity with the recommendations of the task force.
A. Local Planning
Each judicial district should be responsible for developing a plan for the implementation of a family department. Local court structure and internal operating procedures should conform to general principles established by statute, which in turn should be drafted in conformity with the task force report. Procedures that affect the parties and lawyers in the development, presentation, and adjudication of cases should be uniform throughout the state. There also exist basic data elements of the management information system that must be uniform throughout the state. However, provided that local implementation plans meet these minimums, each judicial district should be permitted to devise methods of internal operations that meet local needs.
B. Incumbent Judges
With the creation of an integrated family department, the impact of the new department upon incumbent judges and staff needs consideration. There appear to be three alternatives:
- allow judges to select their preferred assignment based on seniority;
- rotation; and
- prospective application of the family department.
The task force recommends that judicial appointment to the family department be prospective only. Incumbent judges should be permitted to volunteer for the new assignment, but absent that commitment, family department judges should be chosen as new appointees by the governor.
1. Self Selection of Assignment
In theory, a fully judged, fully staffed, fully operational family department could exist on the effective date of enabling legislation. In order to achieve such a sudden shift, incumbent judges now in the district, juvenile, and circuit courts would have to be assigned to the general and family departments of the district court. Judicial assignments, in turn, can be achieved by either the random or seniority selection of judges.
Random selection has no advantage to the court. It does not purport to match any of the judges with the types of cases their experience and preference suggest. Seniority selection would probably satisfy the personal experience and preference of many judges, but many others would be assigned involuntarily. Given the volume of cases shifted to the family department, it is probable that the involuntary assignments would be to the family department. The prospect of a full time, permanent assignment to a department contrary to one's personal and professional desire is not conducive to the commitment and enthusiasm necessary for the success of the family department. Without a high level of commitment from the judges in the family department and a high level of support from those outside the department, the department cannot be successful.
Rotation addresses the concern, raised by seniority selection, that the personal preference and professional expectations of only some judges can be recognized. If the assignments rotate, each judge will be required to share all of the work equally. However, rotation does not answer the concern that judges not well suited to some or all of the family court cases will be required to adjudicate those cases.
The task force earlier recommended against the rotation of judges between the family department and the general department as a model for judicial assignments. The same considerations that supported that long term recommendation, also apply to the rotation of judges during the transition to a family department. In addition to those considerations, rotation during the transition to the family department runs the risk of becoming the permanent model of judicial assignments in spite of the task force recommendation against rotation between departments.
3. Recommendation: Prospective Application of the Family Department
Incumbent judges should not be affected by the creation of a family department in the district court, except as they may volunteer to take the assignment to that department. The current generation of judges made significant career decisions based upon the jurisdiction of the courts at the time of their appointments. While some change in court jurisdiction must be expected during the course of one's judicial career, no one could have anticipated the total reorganization of the trial courts begun by court consolidation and continued with the family department over such a short period of time. Incumbent judges should not be forced to choose between adjudicating cases for which they consider themselves ill-suited and leaving the bench.
The task force recommends the following general plan for achieving a fully judged, fully staffed family department. Incumbent judges should be encouraged to volunteer, within a reasonable period of time after the passage of implementing legislation, for assignment to the family department. A salary bonus or differential for incumbent judges (not newly appointed judges) should be considered. To the extent that the workload demands of the family department cannot be met through volunteers, judicial positions should be reassigned from wherever they exist in the district to the family department of the district as the positions becomes vacant. To assist in the transition, the use of an early retirement incentive, as was used successfully in the consolidation of the district and circuit courts, should be considered.(3)
The governor would then make the new appointment to the family department, and the court would shift an appropriate docket of domestic and juvenile cases to the new judge. The remaining judges outside the family department, both district court judges and juvenile court judges, would be assigned fewer cases of the type assigned to the family department, and would receive instead a higher concentration of the balance of their respective jurisdictions.
The considerations for incumbent judges do not hold for applicants filing for judicial office after publication of this report. Such applicants should be fully aware of the proposed change. Applicants to judicial vacancies occurring between the publication of this final report and implementing legislation should be advised in writing of the possibility of the formation of a family department and the possibility that they may be assigned permanently to that department.
Until the family department has achieved its full complement of judges, any need for new judges in the district court or the juvenile court should be met by establishing new positions in the family department and assigning to the new appointee a sufficient family law caseload to achieve the same benefit as if the new judicial position had been allocated to where the need existed.
Until the family department can be fully implemented, incumbent judges should be required to continue to adjudicate that portion of the family law jurisdiction historically within their respective courts.
This method of implementation will require several years in which to fully achieve a family department, yet is has advantages over the other alternatives.
Because the implementation of the family court will occur in phases, as new judges are appointed, the tremendous cost of time and money to educate all or many of the incumbent judges on the law, procedures, operations, and objectives of the family department will be spread over several years.
The reasons for making the appointment of judges to the family department permanent -- judicial specialization, self selection based on interest in the issues and cases, and controlling the delegation of decisions to staff -- makes the involuntary assignment of incumbent judges to the family department inappropriate.
Due to the animosity that may result from involuntary assignments, requiring judges to take a permanent or rotating assignment to a department for which they are not suited, may significantly impede the full implementation of the task force recommendations. Involuntary assignments may so reduce judicial morale and commitment that the benefits of the family department can never be realized. Enlisting the support of incumbent judges for the concept of the family department is more critical to its success than enlisting their participation in the operation of the department.
The principal disadvantage of this alternative, other than the length of time for full implementation, will be the lack of seniority of the family department judges. By the time all of the judicial appointments to the family department are made there will be a broad cross section of judges in the family department of the various districts. Initially, however, family department judges will be the least senior of all judges. This does not mean that judges of the family department will lack the experience in the law and in life necessary for a successful judicial career. It means only the relative lack of judicial experience when compared with other judges.
To achieve some of the objectives of the family department in the interim, the courts should more fully develop and implement within the district court and juvenile court as many of the programmatic and procedural recommendations of the task force as are feasible. This should include, in particular, case managers with responsibility to coordinate the disposition of related cases by the separate district and juvenile courts and to develop over time a fully integrated case management system.
This will lay the groundwork for the innovative procedures that will be required of a family department. It will also pass along to court users many of the benefits of a family department.
A. Incumbent Court Commissioners and Staff
Incumbent court commissioners of the district court, juvenile court, and circuit court should be assigned to the unified district court, and assigned cases within their authority as determined by the needs of the court.
Unlike judges, who have diverse case assignments, court commissioners of the district court and the juvenile court are now concentrated almost exclusively in the cases that will be assigned to the family department. There is, therefore, not the same concern as with judges regarding involuntary assignment to the family department. The court should consider the experience and personal preferences of incumbent court commissioners in making work assignments. Court commissioners have historically specialized within the two major components of family law, juvenile delinquency and divorce. To ease the transition to a family department, specialization for incumbent court commissioners can be continued. The family department should consider whether such specialization within the many case types heard by the department is the best method of operation.
Many courts already have specialized staff assigned to the types of cases that will constitute the family department. These staff should be assigned to the family department. However, many court clerks and other staff are not specialists in family law cases, and their services will be needed as new judges are appointed to the family department. To the extent possible, courts should make use of volunteers among incumbents, new positions, and vacancies to ease the burden of transition on staff.
In counties with district court clerks who are county employees rather than state employees, the court should hire the incumbent clerks necessary for the family law caseload at their current salary and benefits. This was done in 1983 when the state assumed responsibility for the circuit court and again in 1989 when the state assumed responsibility for the district court. This does not have any fiscal impact because the state currently reimburses the counties for 100% of the cost of the operation of the district court.
1. Recommendation 4.9 at 53. See end note 4 beginning on page 19.
2. The authority of the Chief Justice to appoint temporarily judges of one court level to adjudicate cases of another court level is found in 78-3-21. The maximum term of a single appointment is six months, but there is no prohibition against repeated appointments.
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