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
SK:jd
SUBJECT
Subordinate Judicial Officers: Gifts and Honoraria
DESCRIPTION
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).
BACKGROUND
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
(more)
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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.
170.9(a)(b).)
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.
170.9(i).)
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.
COMMENT
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
system.
Support : Judicial Council
Opposition : None Known
HISTORY
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
Committee.
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)
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