BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2487
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          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  








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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  








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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