BILL ANALYSIS
AB 2487
Page 1
ASSEMBLY THIRD READING
AB 2487 (Feuer)
As Amended May 4, 2010
Majority vote
JUDICIARY 10-0
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|Ayes:|Feuer, Tran, Brownley, | | |
| |Evans, Hagman, Jones, | | |
| |Knight, Huffman, Monning, | | |
| |Nava | | |
| | | | |
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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
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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.
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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
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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
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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