BILL ANALYSIS                                                                                                                                                                                                    

                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session

          AB 2116 (Evans)
          As Amended April 5, 2010
          Hearing Date: June 10, 2010
          Fiscal: Yes
          Urgency: No
                 Subordinate Judicial Officers: Gifts and Honoraria


          This bill would extend existing gift limitations and honoraria  
          restrictions currently applicable to superior court judges and  
          justices of the courts of appeal and the Supreme Court to also  
          apply to subordinate judicial officers (SJOs). 


          California law imposes gift limitations and honoraria  
          restrictions on superior court judges and justices of the courts  
          of appeal and the Supreme Court.  These provisions were added by  
          AB 3638 (Margolin, Ch. 1238, Stats. 1994) and specifically  
          provide for a gift limit and prohibition on the acceptance of  
          honoraria.  In 1995, the Legislature passed and the Governor  
          signed SB 353 (Alquist, Ch. 378, Stats. 1995) which clarified  
          the definition of "gift" with respect to informational  
          materials.  SB 1589 (Calderon, Ch. 557, Stats. 1996) revised the  
          honoraria prohibition and exempted gifts from any person whose  
          preexisting relationship with a judge would prevent the judge  
          from hearing a case involving that person.  The Commission on  
          Judicial Performance is charged with enforcing these  
          restrictions.  In addition, the California Code of Judicial  
          Ethics, adopted by the California Supreme Court, specifies rules  
          and guidance on appropriate behavior by judicial officers,  
          including SJOs.  This bill, sponsored by the California Judges  
          Association, would extend existing law's gift limitations and  
          prohibition on honoraria to SJOs.

                                CHANGES TO EXISTING LAW


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           Existing law  authorizes the Legislature to provide that a court  
          may appoint officers such as commissioners to perform  
          subordinate judicial duties.  (Cal. Const. Art. VI, Sec. 22.)

           Existing law  defines subordinate judicial officer as an officer  
          appointed to perform subordinate judicial duties as authorized  
          by the California Constitution, including, but not limited to, a  
          court commissioner, probate commissioner, referee, traffic  
          referee, and juvenile referee.  (Gov. Code Sec. 71601(i).)

           Existing law  provides that no judge shall accept gifts from any  
          single source in any calendar year with a total value of more  
          than $250.  This prohibition does not apply to: (1) payments or  
          reimbursements for travel and related lodging, as specified; (2)  
          wedding, birthday, or holiday gifts exchanged between  
          individuals; or (3) gifts from any person whose preexisting  
          relationship with a judge would prevent that judge from hearing  
          a case involving that person.  (Code Civ. Proc. Sec.  

           Existing law  prohibits a judge from accepting an honorarium,  
          which is defined to mean a "payment made in consideration for  
          any speech given, article published, or attendance at any public  
          or private conference, convention, meeting, social event, meal,  
          or like gathering." (Code Civ. Proc. Sec. 170.9(g)(h).)   
          "Honorarium" does not include income earned for personal  
          services customarily provided in connection with the practice of  
          a bona fide business, trade, or profession such as teaching or  
          writing, and it does not include fees or other things of value  
          received for performance of a marriage. (Code Civ. Proc. Sec.  

           Existing law  defines "judge" for purposes of the above gift and  
          honoraria limitations as a judge of the superior court and  
          justices of the courts of appeal or the Supreme Court. (Code  
          Civ. Proc. Sec. 170.9(c).)

           This bill  would revise the definition of "judge" to also include  
          SJOs, as defined in Government Code Section 71601.
          1.  Stated need for the bill  
          The author writes:


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            Recognizing the need to prevent actual and the appearance of  
            improper influence or bias in the courts, AB 2116 would extend  
            the scope of existing judicial gift limits to subordinate  
            judicial officers, including court commissioners, probate  
            commissioners, referees, traffic referees, and juvenile  
            referees.  The question posed by existing law is whether the  
            gift limitations that seek to eliminate actual and the  
            appearance of bias in the courtroom, but are currently only  
            applicable to specified judicial officers, should be extended  
            to subordinate judicial officers. 

          The California Judges Association, sponsor of the measure,  
          writes that "[t]here is no policy reason why [SJOs], in many  
          cases performing the same function as Superior Court judges,  
          should not be subject to the same gift rules as judges."  The  
          Judicial Council writes in support that, "[w]hile subordinate  
          judicial officers are employees of the court and not elected  
          officials, for this purpose their role is indistinct from that  
          of judges and they owe the same accountability to the public."
          2.  Whether extending gift and honoraria restrictions to SJOs is  
            appropriate: wide-ranging use of SJOs 

          This bill would extend gift and honoraria restrictions currently  
          applicable to superior court judges and justices of the courts  
          of appeal and Supreme Court to SJOs.  As a result, this bill  
          raises the public policy question of whether it is appropriate  
          to treat SJOs similarly to judges with respect to gift and  
          honoraria limits. 

          In order to address workload issues, California trial courts  
          have increasingly relied on SJOs.  While SJOs are appointed to  
          perform "subordinate judicial duties," such as hearing small  
          claims cases, traffic infractions, and certain civil discovery  
          issues, they have increasingly taken on a more expansive role.   
          In many instances, courts have assigned SJOs to act as temporary  
          judges thus requiring them to perform some of the most complex  
          and sensitive judicial duties, including core judicial duties  
          such as adjudicating juvenile and family law matters.  Recently,  
          the Judicial Council indicated that SJOs typically spend an  
          average of 55 percent of their time serving as temporary judges.  
           In larger courts, that number is closer to 75 to 80 percent.   
          This over reliance on SJOs has resulted in many critical court  
          proceedings being heard by judicial officers who are not  
          accountable to the public.  SJOs are court employees and are not  


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          subject to elections.  They do not have the authority or  
          independence provided by the Constitution. 

          Because SJOs are performing judicial duties and, in some cases,  
          the same function as a judge, this bill seeks to eliminate both  
          actual bias and the appearance of bias in courtrooms across the  
          state by extending the gift and honoraria restrictions to all  
          those with adjudicative power within the California court  

           Support  :  Judicial Council

           Opposition  :  None Known

           Source  :  California Judges Association

           Related Pending Legislation  :  AB 2767 (Committee on Judiciary),  
          the annual civil law omnibus bill, would revise the definition  
          of "subordinate judicial officer" to also include a child  
          support commissioner, juvenile court referee, and juvenile  
          hearing officer.  This measure is currently pending in this  

           Prior Legislation  :  See Background.

           Prior Vote  :

          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Appropriations Committee (Ayes 15, Noes 0)
          Assembly Floor (Ayes 74, Noes 0)