BILL ANALYSIS AB 2487 Page 1 ASSEMBLY THIRD READING AB 2487 (Feuer) As Amended May 4, 2010 Majority vote JUDICIARY 10-0 ----------------------------------------------------------------- |Ayes:|Feuer, Tran, Brownley, | | | | |Evans, Hagman, Jones, | | | | |Knight, Huffman, Monning, | | | | |Nava | | | | | | | | ----------------------------------------------------------------- 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 $1,500 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 years; or, 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 disqualification. 3)Provides that the disqualification required under this bill AB 2487 Page 2 may be waived by the non-contributing party. 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 party; 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; and, 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. 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. AB 2487 Page 3 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. 4)Sets forth the manner by which a judge shall recuse himself or 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. 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. 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 $1,500. FISCAL EFFECT : None 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 disqualification and disclosure requirements would apply for the six-year term for which the contribution was made. The disqualification provision could be waived by the party that did not make the contribution. 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 AB 2487 Page 4 contributions do not create even the slightest appearance of potential judicial bias. 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 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.) 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. Nonetheless, 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 AB 2487 Page 5 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. These provisions of this bill generally track the CIC's recommendation for mandatory disclosure and disqualification by amending the existing conflict-of-interest provisions in the Code of Civil Procedure. 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. Analysis Prepared by : Thomas Clark and Drew Liebert / JUD. / (916) 319-2334 FN: 0004140