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Achieving Equal Justice for Women and Men in the California Courts

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Achieving Equal Justice for Women and Men in the California Courts Achieving Equal Justice for Women and Men in the California Courts Final Report Judicial Council of California Advisory Committee on Gender Bias in the Courts July 1996 Editors Ms. Gay Danforth Editor in Chief Attorney Ms. Bobbie L. Welling Project Manager and Program Attorney Administrative Office of the Courts, Education Division Center for Judicial Education and Research July 1996 Table of Contents Preface xiii Acknowledgments xv Roster: The Judicial Council Advisory Committee on Gender Bias in the Courts xvii Roster: The Judicial Council Advisory Committee on Access and Fairness xxi Chapter One Executive Summary 3 I. Genesis of the Advisory Committee's Report 4 II. Accomplishments of the Draft Report 5 III. The Work of Updating the Draft Report 6 IV. Summary of the Report's Substantive Conclusions and Recommendations 7 A. Family Law 7 B. Domestic Violence 11 C. Juvenile and Criminal Law 13 D. Court Administration 15 E. Civil Litigation and Courtroom Demeanor 17 F. Implementation 19 G. Judicial Education 20 H. Race and Ethnic Bias 20 V. Conclusion 21 Chapter Two Introduction 25 I. Gender Bias: The Historical Context 25 II. What Is Gender Bias? 27 III. Focus on Bias Against Women 28 IV. The Genesis and Development of the Advisory Committee 31 A. Appointment of Precursor Committee 31 B. Implementation of Original Council Proposals 32 C. Appointment of Advisory Committee 33 D. The National Perspective 34 E. Special Focus on Gender Bias and Racial and Ethnic Bias 34 V. Outline of the Report 34 v TABLE OF CONTENTS Chapter Three Methodology 39 I. Introduction: The Methodological Approach 39 II. The Methodological Constraints 40 III. Information-Gathering Techniques 40 A. A Survey of California Judges 41 1. A general description of the survey 41 2. Sample plan and method 42 3. The response rate 43 4. What the survey yielded 43 B. Confidential Regional Bar Meetings 43 C. The Public Hearings 44 D. Site Visits to Two Jail Facilities 45 E. Focus-Group Discussions at the State Bar 46 F. Meetings with Domestic Violence Advocates 46 G. Meetings with Clerks 47 H. Survey of Court Employment Practices 47 I. Reports Submitted by Affiliates of California Women Lawyers 47 J. Literature and Case Law Searches 48 K. Invitation to Comment in California Lawyer 48 L. Followup Telephone Interviews 48 Chapter Four Civil Litigation and Courtroom Demeanor 51 I. Introduction 51 II. Chapter Overview 52 III. Methodology 52 IV. Findings, Recommendations, Discussion, and Analysis 53 A. Conduct of Judges, Other Bench Officers, and Court Employees 53 1. Judicial conduct 53 2. Conduct of other bench officers 71 3. A fairness manual for judges and court employees 74 4. Informal resolution of gender-bias complaints 77 5. Membership in discriminatory clubs 80 B. Conduct of Attorneys and Related Issues 82 1. Attorney conduct exhibiting gender bias 84 2. Use of gender-neutral language 94 3. Appointed counsel 98 4. Attorney employment 99 5. Membership in discriminatory clubs 105 V. Conclusion: Judicial Appointments 106 A. The Case for Diversity on the Bench 107 B. Rural Courts: A Case Study 113 C. Recommendations 114 vi TABLE OF CONTENTS Chapter Five Family Law 119 I. Introduction 119 II. Chapter Overview 120 III. Methodology 122 IV. Findings, Recommendations, Discussion, and Analysis 123 A. The Applicable Laws, Their Interpretation, and Their Enforcement 123 1. Child support 123 2. Spousal support 137 3. Custody 144 4. Special problems: custody and child sexual abuse 149 5. Division of marital assets 156 B. Impediments to the Neutral Participation in Family Law Proceedings for Judges, Lawyers, and Mediators 158 1. Judges 158 2. Lawyers 163 3. Mediators 167 4. Devaluation of family law 178 5. Other barriers to full and fair access to the courts for family law litigants 187 V. Conclusion: Family Law and the Future 198 C. The Need for Research and Adequate Statistical Reporting 199 D. The Need for Judicial Education 201 Chapter Six Domestic Violence 205 I. Introduction 205 II. Chapter Overview 209 A. Protective Orders 210 1. Temporary restraining orders (TROs) 210 2. Emergency protective orders (EPOs) 210 B. Access to the Judicial System 210 C. Child Custody and Visitation 210 D. The Criminal Courts 211 E. Judicial Education 211 III. Methodology 211 IV. Recommendations, Findings, Discussion, and Analysis 212 A. Protective Orders 216 1. Temporary restraining orders—ex parte and after hearing 217 2. Emergency protective orders 234 B. Access to the Judicial System 235 1. Court safety 235 2. Non-English-speaking victims of domestic violence 237 3. Economically disadvantaged victims of domestic violence 238 vii TABLE OF CONTENTS Chapter Six Domestic Violence (cont'd) C. Child Custody/Visitation 240 1. Mediation 241 2. Custody and visitation orders 250 D. Criminal Prosecution 255 1. Diversion 256 2. District attorneys/city attorneys 259 3. Victim-witness assistance programs 262 4. Law enforcement 263 E. Judicial Education 266 V. Conclusion 271 Chapter Seven Criminal and Juvenile Law 275 I. Introduction 275 II. Chapter Overview 276 III. Methodology 277 IV. Findings, Recommendations, Discussion, and Analysis 278 A. Appointed Counsel 278 1. Statutory background 280 2. Present court practices and procedures 282 3. Potential for unequal treatment 282 4. Need for understanding of qualifications and criteria for appointments 284 5. Underrepresentation of female attorneys in serious felony cases and overrepresentation in juvenile proceedings 284 6. Need for recruitment 286 7. Need for statistics 286 8. Conclusion 287 B. Programs, Services, and Facilities for Inmates 287 1. Local programs and services administered or supervised by probation departments or county welfare agencies 288 2. Institutions and placements 297 3. Education and training programs 304 C. Special Needs of Institutionalized Females 308 1. Need for adequate and appropriate clothing 310 2. Special hygiene problems of institutionalized females 310 3. Hardware and shackles amenable to the female form 312 4. Residential prison and jail programs that unite mothers and children 312 5. Visitation 315 6. Facilities and visitation programs for juvenile mothers 317 7. Juvenile dependency cases—reunification 318 8. Conclusion 319 viii TABLE OF CONTENTS Chapter Seven Criminal and Juvenile Law (cont'd) D. Medical Problems of Institutionalized Females 319 1. Statutory framework 320 2. Need for medical services 321 3. Need for drug detoxification programs and AIDS testing 322 4. Need for protocols and minimum standards 322 5. Perinatal needs of institutionalized juveniles 323 6. Conclusion 325 E. Sexual Assault and Sexual Harassment Suffered by Inmates 325 F. Juvenile Dependency Proceedings 326 1. Parental ignorance of dependency law and procedures 327 2. Notice to parents in custody or detention regarding dependency, delinquency, and termination of parental rights proceedings 329 G. Enhancing Status of the Juvenile Court 331 1. Nexus between low priority and lack of resources 332 2. Need to revise juvenile caseload measures 334 3. Judicial assignments 335 4. Conclusion 335 H. Judicial Training 335 1. Need for judicial training programs 336 2. Credibility issues and sexual stereotypes 337 3. Fairness in jury selection 338 4. Conclusion 339 Chapter Eight Court Administration 343 I. Introduction 343 II. Chapter Overview 345 III. Methodology 346 IV. Findings, Recommendations, Discussion, and Analysis 348 A. Court Employment Practices 348 1. Need for comprehensive personnel plans 348 2. Elements of a personnel plan 352 3. Need for judges to approve and comply with the personnel plan 375 4. Administrative Office of the Courts as a resource and clearinghouse for court personnel plans 377 5. Need for training of all courtroom attachés 378 B. Judicial Leave Policy 380 C. Child Care for Court Employees and Court Participants 382 1. Child care for court employees 382 2. Child care for court participants 384 D. Employment Practices and Gender-Biased Teaching in Law Schools 388 V. Conclusion 394 ix TABLE OF CONTENTS Chapter Nine Implementation 399 I. Introduction 399 II. The Need for an Implementation Committee 400 III. The Need for Judicial Education 403 A. The National Perspective 405 B. Judicial Education on Gender Bias in California 406 C. The New Challenge in Judicial Education 406 1. Judicial education as the preferred tool for correcting gender bias 406 2. The need for improvement in curriculum and teaching methods 408 D. Judicial Education on Gender Bias: The Course Content 413 E. Conclusion 413 Chapter Ten The Future in California: A Majority of Minorities 417 I. Demographics 417 II. The Multiple Effects of Bias Based on Race, Ethnicity, and Gender 418 III. The Need for a Task Force on Ethnic and Racial Issues of Bias in the Courts 419 IV. Summary of Data 423 A. Judicial Conduct 423 B. Criminal and Juvenile Law 424 C. Domestic Violence and Family Law 427 D. General Barriers to Access to Court 428 1. Lack of access to the courts 428 2. Professional issues for attorneys 429 3. Court employees 430 E. Language Barriers to Access to the Courts 431 V. A Note on Judicial Appointments 432 VI. Conclusion 433 Chapter Eleven Conclusion 437 x TABLE OF CONTENTS Chapter Twelve Recommendations 441 Chapter Thirteen Appendices A. Fact Sheet B. Chief Justice's Speech C. Chief Justices' Resolution D. Judges' Survey Questionnaire and Cover Letter E. Other Survey Instruments F. List of Public Hearing Witnesses G. List of Focus Group Invitees H. Request for Comments Published in California Lawyer I. July Developing Management Skills Questionnaire J. October Association of Municipal Court Clerks Questionnaire K. Spring 1988 Questionnaire to all Courts L. Tabulation of Responses to 1989 Questionnaire on Court Employment Practices M. Alameda County Superior Court Discrimination and Sexual Harassment Policies and Procedures N. Educational Materials O. Criminal Justice Statistics xi COMMITTEE ON GENDER BIAS Preface In 1990 the Judicial Council Advisory Committee on Gender Bias in the Courts, co-chaired by Los Angeles Superior Court Judge David M.
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