BILL ANALYSIS                                                                                                                                                                                                    

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          Date of Hearing:  April 27, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                    AB 2487 (Feuer) - As Amended:  April 20, 2010

                             As Proposed to be Amended 
          SUBJECT  :  Judges: Disqualification AND DISCLOSURE RULES TO  

           KEY ISSUES  :  

          1)Should a Superior Court Judge be disqualified from hearing a  
            matter if the judge has received a campaign contribution in  
            excess of $1500 from a party or counsel in the matter?

          2)Should a Superior Court Judge who receives a campaign  
            contribution of less than $1500 be required to disclose that  
            contribution to the other parties and counsel in the matter? 

           FISCAL EFFECT  :  As currently in print this bill is keyed  


          Existing law requires a judge to recuse him- or herself if he or  
          she has a financial interest in a party or in the subject matter  
          of the action before the court, if the amount of the financial  
          interest is in excess of $1500.  However currently "financial  
          interest" is not defined to include campaign contributions.   
          This non-controversial bill would logically require a superior  
          court judge to disqualify him- or herself from hearing any  
          matter in which a party or counsel to the matter before the  
          court has given the judge a campaign contribution in excess of  
          $1500.  If a judge has received a campaign contribution of less  
          than $1500 from a party or counsel in a case before him or her,  
          then the judge would be required to disclose that fact on the  
          record as well as to the other parties and counsel.  The genesis  
          of this bill idea comes, in part, from the December 2009 Final  
          Report of the Commission for Impartial Courts (CIC), a  
          commission created through the efforts of the Judicial Council  
          and Chief Justice Ronald George and chaired by Associate Justice  
          Ming Chin.  The CIC's Final Report made 71 recommendations (only  
          a minority of which required legislation) on how to improve  


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          judicial quality, impartiality, and accountability in  
          California.  This bill embodies two of those recommendations:  
          mandatory disclosure and disqualification for certain campaign  
          contributions.  The author, like the CIC, believes that  
          requiring disclosure and disqualification in such situations  
          will serve the state's compelling interest in maintaining actual  
          and perceived judicial impartiality.  For reasons discussed  
          below, the author appropriately plans to take an amendment in  
          this Committee that will allow the non-campaign contributing  
          party to waive the disqualification requirement so the case may  
          go forward with that particular superior court judge.  The bill  
          summary below reflects that amendment.  There is no known  
          opposition to the bill. 

           SUMMARY  :  Requires the disqualification of a superior court  
          judge who has received a campaign contribution in excess of  
          $1500 from a party or counsel in a matter that is before the  
          court and requires the disclosure of lesser amounts, as  
          specified.  Specifically,  this bill  :  

          1)Provides that a judge shall be disqualified if he or she has  
            received a contribution in excess of $1500 from any party or  
            counsel in a matter that is before the court, and either of  
            the following apply:

             a)   The contribution was received in support of the judge's  
               last election, if the last election was within the last six  
             b)   The contribution was received in anticipation of an  
               upcoming election. 

          1)Provides that a judge shall be disqualified when receiving  
            campaign contributions of lesser amounts if the judge believes  
            the contribution would compromise his or her impartiality or  
            if a person aware of the contribution might reasonably  
            entertain a doubt that the judge could be impartial.

          2)Requires a judge to disclose, as specified, a campaign  
            contribution from a party or counsel with a matter before the  
            court, even if the amount is not sufficient to require  

          3)Provides that the disqualification required under this bill  
            may be waived by the non-contributing party. 


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           EXISTING LAW  : 

          1)Provides that a superior court judge shall be disqualified if  
            one or more of the following is true:
             a)   The judge has personal knowledge of disputed evidentiary  
               facts concerning the proceeding.
             b)   The judge served as a lawyer in the proceedings or gave  
               advice to a party in the present proceeding upon a matter  
               involved in the action or proceeding.
             c)   The judge, or a spouse or a minor child living within  
               the same household, has a financial interest in the subject  
               matter in a proceeding or in a party to the proceeding. 
             d)   The judge, or a spouse of a judge, or a person within  
               the third degree of relationship, as defined, is a party to  
               the proceeding or an officer, director, or trustee of a  
             e)   A lawyer or a spouse of a lawyer in the proceeding is  
               the spouse, former spouse, child, sibling, or parent of the  
               judge or the judge's spouse, or if such a person is  
               associated in the private practice of law with a lawyer in  
               the proceeding. 
             f)   For any reason the judge believes would compromise his  
               or her impartiality or if a person aware of the facts might  
               reasonably entertain a doubt that the judge would be able  
               to be impartial.
             g)   The judge has a current arrangement concerning  
               prospective employment or compensated service, or within  
               the past two years has participated in discussions about  
               prospective employment or compensated service, as  
               specified, with a party to the proceeding.  (Code of Civil  
               Procedure Section 170.1(a).)

          2)Provides that a judge before whom a proceeding was tried or  
            heard shall be disqualified from participating in any  
            appellate review of that proceeding.  (Code of Civil Procedure  
            Section 170.1(b).) 

          3)Provides that, at the request of a party or on its own motion,  
            an appellate court shall consider whether it is in the  
            interests of justice to direct that further proceedings be  
            heard before a trial judge other than the judge whose judgment  
            or order was reviewed by the appellate court.  (Code of Civil  
            Procedure Section 170.1(c).) 

          4)Sets forth the manner by which a judge shall recuse himself or  


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            herself based on a conflict of interest and establishes the  
            means by which a party or counsel may object to a judge who  
            fails or refuses to recuse himself or herself where there are  
            grounds upon which the judge should have been disqualified.   
            (Code of Civil Procedure Section 170.3.)

          5)Permits any party to or attorney appearing in any action  
            before the court, by written or oral motion, to make a  
            peremptory challenge to the judge assigned to a case.   
            Specifies that the motion must be supported by an affidavit or  
            declaration under penalty of perjury that the assigned judge  
            is prejudiced against the party or attorney.  (Code of Civil  
            Procedure Section 170.6.) 

          6)Defines "financial interests," for purposes of determining the  
            disqualification requirement, to mean ownership of more than 1  
            percent legal or equitable interest in a party or the subject  
            matter of the proceeding, or a legal or equitable interest in  
            a party or the subject matter of the proceeding in excess of  
            $1500.  (Code of Civil Procedure Section 170.5(b).) 

           COMMENTS  :  This non-controversial measure seeks to require  
          superior court judges in California to take two important  
          cautionary steps to maximize the actual and perceived fairness  
          of our courts:  (1) disclose to the parties appearing before the  
          court whether any opposing party or counsel has made a campaign  
          contribution to the judge; and (2) if the contribution is in  
          excess of $1500, to disqualify themselves from hearing the  
          matter.  The author believes, as does the Judicial Council's  
          Commission for Impartial Courts (CIC), that such precautions  
          will strengthen our judiciary by helping to ensure that judicial  
          decisions are not influenced by campaign contributions in any  
          way- and just as importantly for the sake of the legitimacy of  
          judicial system, that campaign contributions do not create even  
          the slightest  appearance  of potential judicial bias.
          The Caperton Case - The Canary in the Mine?   Although  
          discussions about campaign finance reform usually focus on  
          officials elected to one of the political branches of  
          government, a number of recent developments have exposed growing  
          concerns about the potentially corrupting effect of campaign  
          contributions in judicial elections.  A most egregious example  
          of this kind of corruption was seen in the stunning facts that  
          gave rise to the United States Supreme Court recent opinion in  
          Caperton v. Massey (2009) 129 S. Ct. 2252.  In Caperton, a West  


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          Virginia Supreme Court of Appeals justice, Brent Benjamin,  
          remarkably refused to recuse himself from a case even though he  
          had received a whopping $3 million in campaign contributions  
          from just one of the parties, the Massey Coal Company.  Both the  
          amount and the circumstances of the contribution naturally  
          raised serious suspicions.  In the trial court action brought  
          against Massey for fraudulent business practices, a jury awarded  
          the plaintiff $50 million.  After the verdict, but before the  
          appeal of the judgment reached the high court, a Massey  
          executive donated $3 million to Justice Benjamin's campaign for  
          a seat on the high court.  Benjamin was elected and took his  
          seat in time to hear Massey's appeal.  The opposing party,  
          Caperton, moved for recusal because of the $3 million  
          contribution, but West Virginia state law ultimately leaves  
          recusal to the discretion of the individual justice.  Benjamin  
          refused to recuse himself, and then voted with the majority in a  
          3-2 decision overturning the judgment against Massey.  Caperton  
          appealed to the U.S. Supreme Court, which, in a 5-4 vote, ruled  
          that a judge who failed to recuse himself under such  
          circumstances violated the due process rights of the  
          non-contributing party.  (Caperton, supra at 2257.)

          Although one might contend that Caperton was unusual in terms of  
          the size and timing of the contribution, the general problem  
          that gave rise to the case is not unique.  According to the  
          National Conference of State Legislatures, thirty-nine states  
          elect some or all of their judges and all have guidelines for  
          when a conflict of interest demands judicial recusal.  However  
          it appears that most states, like West Virginia, leave the  
          ultimate decision to the discretion of the judge, especially at  
          the appellate level.  

           Campaign Contribution Increases in Recent Judicial Elections  :   
          Although it is difficult to quantify, most commentators contend  
          that the amount of money spent on judicial elections in recent  
          years has increased dramatically.  According to studies by two  
          national legal affairs groups - the Brennan Center for Justice  
          and Justice at Stake - candidates for state supreme courts  
          raised over $205 million between 2000 and 2009, compared to only  
          about $84 million in the previous decade.  While these numbers  
          are still low compared to the amount of money raised for  
          legislative and executive branch elections, the fact that  
          contributions to judicial elections have more than doubled over  
          the last decade is to many a very troubling trend, especially  
          when one recalls the traditionally non-partisan and often  


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          uncontested nature of judicial elections.  (See e.g. Adam  
          Skaggs, "Judging for Dollars," The New Republic, April 3, 2010;  
          Dorothy Samuels," Hanging a 'For Sale" Sign over the Judiciary,"  
          Id., January 30, 2010.) Brennan Center for Justice, Fair Courts:  
          Setting Recusal Standards (2008) and James Sample, Lauren Jones,  
          and Rachel Weiss, The New Politics of Judicial Elections, 2006,  
          available at  .)  

          A number of prominent voices have expressed a similar concern  
          about the impact of judicial spending on judicial integrity and  
          impartiality, including Sandra Day O'Connor, former Associate  
          Justice of the U.S. Supreme Court.  O'Connor fears that this  
          danger has been seriously exacerbated by the U.S. Supreme  
          Court's recent opinion in Citizens United v. FEC (2010)  
          (discussed more fully below), as that ruling will free  
          corporations and unions to spend unlimited amounts in  
          "independent expenditures" on behalf of judicial candidates.   
          O'Connor especially warns that, even if campaign contributions  
          do not sway a judge's vote, they nonetheless create a perception  
          of judicial impartiality that undermines the legitimacy of our  
          court system.  While large campaign contributions to candidates  
          for legislative and elective offices can also create a  
          perception of corruption, contributions in judicial elections  
          are especially problematic in our system of government and  
          justice-making.  Political candidates, after all, promise to  
          take certain positions on prominent policy issues, and  
          individuals and groups give them financial support based on  
          those promised positions.  Politicians are expected to act in  
          the interest of their constituents, including the ones who give  
          them money.  Judges, on the other hand, are expected to make  
          decisions on the basis of the facts before them and the rule of  
          law, and they do not have constituents that they are expected to  
          "represent."  As Adam Skaggs of the Brennan Center for Justice  
          puts it, judges must answer to law, and "the very legitimacy of  
          the courts depend upon the public believing that judges will  
          treat every party without bias or favor.  If, in the Citizens  
          United era, states don't adopt public financing and strong  
          disclosure and disqualification rules, the judiciary's  
          credibility will dissolve - and quickly."  (Adam Skaggs,  
          "Judging for Dollars," New Republic, April 3, 2010.  On Justice  
          O'Connor, see Samuels, supra; and Adam Liptak, "Former Justice  
          O'Connor Sees Ill in Elections Finance Ruling," New York Times,  
          January 27, 2010.) 

           The Possible Dangerous Effects of Citizens United  :  The author  


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          agrees, along with Justice O'Connor and many others, that the  
          recent campaign finance ruling by the U.S. Supreme Court could  
          lead to increased spending in judicial elections - and  
          corresponding threats to the credibility of the judicial branch.  
           In Citizens United v. FEC (2010) 130 S. Ct. 876, the Court held  
          that a corporation has a First Amendment right to spend  
          unlimited amounts for "independent expenditures" on behalf of  
          political candidates - even if those "independent" expenditures  
          fund advertisements that endorse or oppose a candidate by name.   
          President Obama, among others, has voiced his fear that the  
          ruling will "open the floodgates" on corporate and union  
          campaign spending and create at least the appearance of  
          political corruption.  Scholars differ on the effect that this  
          decision will have on judicial elections, but to the extent that  
          the decision removes limits on independent corporate  
          contributions, it is possible that there could be more examples  
          like the one in Caperton v. Massey, discussed above.  Indeed, in  
          that case, of the just over $3 million in contributions, only  
          $1,000 (the statutory contribution limit in West Virginia) went  
          directly to Justice Benjamin directly.  About $2.5 million went  
          to a political organization that supported Benjamin and opposed  
          his opponent, while about $500,000 took the form of "independent  
          expenditures" for direct mailings and television and newspaper  
          advertisements.  (Caperton, supra at 2257.) 

           Judicial Campaign Reform Efforts in Other States  .  Whatever the  
          impact of Citizens United on judicial elections might be, a  
          number of states have launched efforts at judicial campaign  
          finance reform in recent months, either through their  
          Legislatures or by adopting new court rules.  For example, West  
          Virginia, home of the Caperton case, recently adopted a pilot  
          project for public financing of Supreme Court elections.  Under  
          the pilot project, Supreme Court candidates would receive public  
          funding in the 2012 elections in exchange for accepting  
          voluntary caps on expenditures.  West Virginia now joins North  
          Carolina, New Mexico, and Wisconsin as states with public  
          financing for judicial elections.  In Michigan, the state  
          Supreme Court adopted rules making it easier to disqualify a  
          justice from hearing cases where parties have made campaign  
          contributions to the justice.  Nevada is now considering a shift  
          to merit-based appointments in lieu of judicial elections, but  
          opinion polls in that state suggest that most Nevadans want to  
          keep electing their judges.  Efforts to shift to merit selection  
          systems are also being considered in Minnesota and Ohio.  (See  
          e.g. "New West Va. Law Shows 'National Momentum' for Court  


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          Election Reforms," available at  ; and  
          "Poll: Many Oppose Plan to Allow Appointment of Judges," Las  
          Vegas Review-Journal, April 12, 2010.)  On the other hand, as if  
          to prove the adage that the grass is always greener on the other  
          side, a group in Missouri is pushing an initiative that would  
          change the Show-Me State's merit-based appointment system with  
          elections.  Interestingly, but perhaps predictably, the source  
          of campaign contributions for and against the initiative has  
          itself become a source of controversy.  ("Groups Battling over  
          Missouri Plan are Fuzzy on Donors," Jefferson City  
          Post-Dispatch, April 14, 2010.)  But Missouri appears to be the  
          exception that proves the rule. 

           Judicial Campaign Spending and Preventive Reform in California:    
          For the most part, California has thus far been spared the  
          highly partisan and expensive judicial election campaigns that  
          have unfolded in other states, such as Texas, Illinois, and, of  
          course, West Virginia.  In large measure this is because  
          appellate court elections in California, for the most part, are  
          uncontested.  California appellate justices are appointed and  
          then run in "retention" elections without an opposing candidate.  
           Our state Supreme Court justices have rarely faced challenges  
          in their retention elections, though the celebrated case of  
          former Chief Justice Rose Bird (where the chief justice and two  
          of her colleagues faced unprecedented election campaigns against  
          them by groups who opposed some of their judicial rulings)  
          illustrates that controversial rulings may occasionally force  
          Supreme Court justices to raise funds for a statewide campaign -  
          and given the potential for much more funding availability  
          post-Citizens United, such occasions may grown in the future.   
          Thus, as California Associate Supreme Court Justice Ming Chin  
          has noted of the national trends: "the question is not if these  
          trends [will] spread to California, but when."  In short,  
          Justice Chin believes that California should act now to prevent  
          the distressing and dangerous national trend of increased  
          campaign fundraising in judicial elections from reaching  
          California.  (Ming W. Chin, "An Introduction to the Work of the  
          Commission for Impartial Courts," California Courts Review, Fall  
          2007-Winter 2008, p. 13.  Emphasis in original.) 

          Why Initial Version of This Legislation Targets Its  
          Proscriptions on Trial Court Races:  While it is still true that  
          appellate justices in California do not regularly face contested  
          elections, our superior court judges do - and such election  
          contests are more and more appearing similar to traditional  


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          political campaign "shoot-outs."  For example, there are  
          currently seven candidates for the upcoming June election to  
          fill two seats on the San Francisco Superior Court.  As of  
          mid-March, one of the candidates had already collected over  
          $100,000 in campaign contributions and a second had raised just  
          under $100,000.  The amounts collected by the five other  
          candidates ranged from $10,000 to $77,500.  One of the  
          candidates has voluntarily capped expenditures at $10,000 and  
          refuses to accept campaign contributions because, he says, "the  
          more money you feel you have to raise in a judicial campaign,  
          the more it calls in question your ability to remain impartial  
          in the future."  For superior court judges, the chances that a  
          campaign contributor might someday appear before the same judge  
          is not unlikely given that some of the biggest contributors to  
          judicial campaigns, as exemplified in San Francisco, are large  
          law firms.  ("S.F. Bench Candidate Tops $100K," San Francisco  
          Recorder, March 23, 2010.)  According to the author, even if the  
          vast majority of superior court judges are scrupulous in  
          deciding cases based on the facts and the law, without regard to  
          campaign contributions made by a party or counsel, those  
          contributions at the very least can create a perception of bias.  
           This perception, the author notes, may be as damaging to  
          judicial integrity as actual bias. 

           California Commission for Impartial Courts  :  In response to  
          growing concerns about increasingly partisan and expensive  
          judicial elections, California Chief Justice Ronald George and  
          the Judicial Council established the Commission for Impartial  
          Courts (CIC) in 2007.  The CIC was asked to devise proposals to  
          ensure judicial quality, impartiality, and accountability.  The  
          CIC developed draft recommendations and invited public comment.   
          The result of this process was a December 2009 report that made  
          71 recommendations relating to judicial candidate campaign  
                                                  conduct, judicial campaign finance, judicial selection and  
          retention procedures, and public information and education.   
          (CIC, Final Report: Recommendations for Safeguarding Judicial  
          Quality, Impartiality, and Accountability in California,  
          December 2009.)  Some of the recommendations called for changes  
          in the Code of Judicial Ethics, others called for legislation,  
          and still others called for enhanced educational efforts on the  
          part of the legal profession.  Two of the CIC recommendations -  
          recommendations 29 and 30 - proposed mandatory disclosure and  
          disqualification requirements very similar to those set forth in  
          this bill.  The CIC concluded that these reforms were meant to  
          address increasing public concerns throughout the country about  


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          the impact of money in judicial elections, especially "given the  
          unique role of the judiciary in our structure of government."   
          The CIC defended judicial campaign finance reform as follows:

               The public expects and is entitled to impartiality in  
               judicial decisions and, as a result, the more influence  
               that moneyed interests have or appear to have on  
               judicial candidates, the more harm is done to the  
               public's trust and confidence that judicial decisions  
               are based on the rule of law as opposed to other  
               considerations. [Mandatory disqualification and  
               disclosure will] enhance the public's confidence that  
               the system has safeguards in place to prevent judicial  
               decisionmaking from being influenced by monetary  
               contributions.  (CIC, Final Report, pp. 8, 30.)

          This bill seeks to implement the CIC's recommendation for  
          mandatory disclosure and disqualification by amending the  
          existing conflict-of-interest provisions in the Code of Civil  
          Procedure.  Existing law requires trial court judges to  
          disqualify themselves under a variety of situations that might  
          create a conflict of interest, such as family ties or a past or  
          present employment relationship with a party or counsel.  (Code  
          of Civil Procedure Section 170.1.)  More pertinent to this bill,  
          existing law requires judges to disqualify themselves if they  
          have a "financial interest" in a party or the subject matter  
          that is in excess of $1500.  However, this "financial interest"  
          is not defined in a way that would include a party's or a  
          lawyer's campaign contribution.  (Code of Civil Procedure 170.5  
          (b).)  This bill, however, would specify that a judge who has  
          received a campaign contribution in excess of $1500 should  
          similarly disqualify himself or herself.  The procedure by which  
          a judge shall disqualify himself or herself, and the manner in  
          which a party may challenge a judge who does not disqualify  
          himself or herself, would be the same as the disqualification  
          procedure now required for any other conflict of interest.  In  
          addition, consistent with parallel conflict-of-interest  
          provisions, this bill would provide that a judge should be  
          disqualified if he or she believes that the contribution  
          (whatever the amount) will affect his or her ability to judge  
          the case impartially, or if there is something about the nature  
          of the contribution that would cause a person to reasonably  
          doubt the judge's ability to be impartial - even if the amount  
          of the contribution does not exceed the $1500 threshold. 


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          This bill would also require disclosure of any reportable  
          campaign contributions, even if the amount is not enough to  
          require disqualification.  California's Political Reform Act  
          (PRA) requires candidates (including judicial candidates) to  
          file campaign disclosure statements for any contribution that is  
          reportable under existing rules (the reportable amount is  
          currently $100).  However, unlike candidates to other elective  
          offices, judicial candidates are not subject to any campaign  
          contribution limits.  Moreover, while PRA requires judicial  
          candidates to disclose contributions through documents filed  
          with the Secretary of State, judicial candidates are not  
          required to alert parties or counsel about any contributions  
          that they may have received from adverse parties or counsel.   
          This bill would change that by requiring judges to disclose to  
          all parties before the court in a particular matter whether any  
          other party or counsel in the matter has made a reportable  
          campaign contribution.  The manner of disclosure would be the  
          same as the procedure by which a judge must disclose any other  
          information that is reasonably relevant to the question of  
          disqualification as set forth in Canon 3E(2) of the Code of  
          Judicial Ethics. 

           Should the Bill's Provisions Apply to Appellate Justices  ?  As  
          currently drafted, this bill applies only to superior court  
          judges in California.  It does not apply to appellate justices,  
          even though the experience of other states suggests that rising  
          campaign expenditures and increased partisanship in judicial  
          elections is currently many times most apparent at the appellate  
          level.  Although the CIC Final Report recommended applying  
          disqualification requirements to appellate justices, it did not  
          recommend applying disclosure requirements to appellate justices  
          at this time - in large part because the manner of disclosure  
          prescribed for trial court judges would not always appear to be  
          relevant to appellate justices.  The Judicial Council of  
          California, for example, has informed the Committee that parties  
          appearing before the Courts of Appeal often do not know which  
          justices will hear their case until the moment that the parties  
          present their arguments.  Therefore, both disclosure and  
          disqualification would appear to present some additional  
          practical implementation challenges not necessarily present at  
          the trial court level.

          As for the California Supreme Court, the fact that there are  
          only seven justices and no possible replacements in the event of  
          disqualification also appears to present a different and unique  


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          set of considerations than does the trial court scenario.   
          Although both the CIC and the author of this bill believe that  
          the fundamental principle behind mandatory disqualification and  
          disclosure  should  apply to appellate justices as well as trial  
          court judges, the author believes that the special circumstances  
          of the appellate process - as well as the fact that there is  
          already an existing statutory process for disqualification for  
          trial court judges - warrants that the Legislature withhold  
          extending the bill to appellate justices, at least at this early  
          time in the bill's legislative journey, in order to permit more  
          time and consideration on how to implement these requirements at  
          the appellate level, and whether such application is similarly  
          warranted at this time. 

          The author also contends that restricting the application of  
          this bill only to superior court judges at this time is  
          warranted by the fact superior court justices face contested  
          elections for six year terms.  Appellate justices, on the other  
          hand, run in uncontested "retention" elections and, typically,  
          have no need to raise campaign funds.  The only time that an  
          appellate justice in California would need to raise funds is if  
          a group or groups mounted a challenge in a retention election.   
          If this happened (and given the often heated nature of appellate  
          issues it very well could), the particular justice would  
          potentially need to raise substantial funds very quickly to  
          support a statewide campaign.  If in the course of that campaign  
          the justice took contributions from a person or group that later  
          appears before the justice as counsel or party - as in West  
          Virginia's Caperton case - then the same logic that compels  
          disclosure and disqualification for trial court judges would  
          seem to forcefully apply to appellate justices.  However, for  
          the reasons noted above, both the author and the Judicial  
          Council believe that more time is needed as the bill moves  
          forward to consider the appropriate disqualification and  
          disclosure procedures for appellate justices, and whether  
          applying the bill's approach to appellate justices is wise. 

           States Have a "Compelling Interest" in Preserving Actual and  
          Apparent Judicial Impartiality:  Finally, in further support of  
          this bill, the author stresses that the U.S. Supreme Court has  
          clearly held that states have a "compelling interest" in  
          preserving both actual judicial impartiality, as well as the  
          appearance of judicial impartiality.  For example, in Republican  
          Party of Minnesota v White (2002) 536 U.S. 765, the U.S. Supreme  
          Court considered the constitutionality of a provision in the  


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          Minnesota Code of Judicial Conduct that prohibited a judicial  
          candidate from making public "announcements" about "disputed  
          legal or political matters."  The idea behind the provision was  
          that such announcements might commit, or appear to commit, the  
          justice to a predetermined conclusion should the matter come  
          before the justice.  In a 5-4 decision, the Court held that the  
          provision violated the judicial candidate's free speech rights  
          under the First Amendment.  However, in making this  
          determination, the Court did not challenge the holding of the  
          8th Circuit Court that the state had a compelling interest in  
          preserving the independence and impartiality of the judiciary,  
          as well as the appearance of independence and impartiality.  The  
          Court struck down the "announce" provision, instead, because of  
          its sweeping nature - for example, it prohibited announcements  
          on political as well as legal matters, and it prohibited  
          announcing mere opinions about those matters as opposed to  
          "promises" to decide a case in a particular way.  In short, the  
          Court held that provision was not narrowly tailored enough to  
          meet the admittedly compelling state interest in preserving  
          judicial impartiality or the appearance thereof - it did not  
          deny that the interest was compelling.  (White, supra, at  

          This bill, the author contends, is supported by California's  
          compelling interest in maintaining judicial impartiality and the  
          appearance of judicial impartiality.  It does not, he notes,  
          raise any First Amendment issues because it does not restrict  
          the amount of money that a person may contribute to a judicial  
          campaign, nor does it restrict the amount that a judge may  
          accept.  Rather, as the author contends, it is narrowly and  
          prudently tailored to serve the reasonable goal of ensuring that  
          campaign contributions to superior court judges do not influence  
          judicial decision making or create the appearance of influencing  
          judicial decision making. 

           Author's Amendment  :  As proposed to be amended, this bill would  
          also appropriately provide that the disqualification requirement  
          can be waived by the non-campaign contribution contributing  
          party, so that a party could not attempt to manipulate the  
          disqualification requirement by cynically making a contribution  
          to a disfavored judge solely for the ironic purpose of later  
          being able to disqualify that judge.   Therefore, the author is  
          making the following amendment in this Committee:

           On page 5 after line 12 insert:


                                                                  AB 2487
                                                                  Page  14

          (D) The disqualification required under this paragraph may be  
          waived by the party that did not make the contribution described  
          in subparagraph (A). 
          ARGUMENTS IN SUPPORT (if amended)  :  The Judicial Council of  
          California generally supports this bill as a measure that will,  
          consistent with the recommendations of the CIC, "enhance the  
          public's confidence that the system has safeguards in place to  
          prevent judicial decisionmaking from being influenced by  
          monetary contributions."  However, the Judicial Council  
          conditions its support on an amendment that would reduce the  
          time period for which the requirements for disqualification and  
          disclosure would apply to only two years.  This bill, however,  
          would impose the duty to disqualify and disclose for the entire  
          six year term for which the contribution was given.  The  
          Judicial Council notes that CIC recommended two years and claims  
          that six years would be "too long."  In support of this  
          position, the Judicial Council points to the provision in the  
          Code of Civil Procedure that requires disqualification if a  
          judge, within the last two years, has participated in  
          discussions regarding prospective employment with one of the  
          parties or counsel.  The Judicial Council also claims that a six  
          year period might cause parties to "manipulate" the requirement  
          by giving a contribution to a disfavored judge for the sole  
          purpose of having that judge removed. 


          Judicial Council of California (if amended)  

          None on file 
          Analysis Prepared by  :  Thomas Clark and Drew Liebert / JUD. /  
          (916) 319-2334