BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 2487 (Feuer)
          As Amended May 4, 2010
          Hearing Date: June 29, 2010
          Fiscal: No
          Urgency: No
          SK/TW:jd  
                    

                                        SUBJECT
                                           
                              Judges: Disqualification 

                                      DESCRIPTION  

          This bill would require that a judge be disqualified when he or  
          she has received a contribution of more than $1,500 from a party  
          or counsel in a proceeding and either the contribution was  
          received in support of the judge's last election, if the last  
          election was within the prior six years, or the contribution was  
          received in anticipation of an upcoming election.  This bill  
          would also require the judge to disclose campaign contributions  
          if those amounts are reportable under the Political Reform Act. 

                                      BACKGROUND  

          In September 2007, the Commission for Impartial Courts  
          (Commission) was formed for the purpose of providing the  
          Judicial Council with recommendations on strengthening  
          California's court system, increasing public trust and  
          confidence in the judiciary, and ensuring judicial impartiality  
          and accountability.  The Commission submitted a Final Report on  
          December 15, 2009 (Report), detailing the Commission's findings  
          and recommendations, which included recommendations for the  
          mandatory disqualification of judges hearing any matter  
          involving a party, counsel, party affiliate, or other interested  
          party who has made a monetary contribution to the judge's  
          campaign.  (See Commission for Impartial Courts, Final Report,   
          Dec. 15, 2009, pgs. 34-35.)

          Shortly after the Commission issued its Final Report, the U.S.  
          Supreme Court issued its ruling in Caperton v. A.T. Massey Coal  
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          Co. (2009) 129 S. Ct. 2252 which directly addressed the issue of  
          judicial recusal and campaign contributions.  Caperton involved  
          the receipt by a judge of $3 million in campaign contributions  
          from a party in an action and the resulting Fourteenth Amendment  
          due process issues for the non-contributing party.  A subsequent  
          U.S. Supreme Court ruling in Citizens United v. Federal Election  
          Commission (2010) 130 S. Ct. 876 held that the First Amendment  
          prohibits limits on independent expenditure campaign  
          contributions by corporations, including contributions made in  
          judicial campaigns.  Under existing California law, judicial  
          officers are required to recuse themselves if they have a  
          financial interest in a party or a proceeding, but they are not  
          expressly required to recuse themselves after receiving campaign  
          contributions from an interested party to an action.

          This bill would require that a judge be disqualified when he or  
          she has received a contribution of more than $1,500 from a party  
          or counsel in the proceeding and either the contribution was  
          received in support of the judge's last election, if the last  
          election was within the prior six years, or the contribution was  
          received in anticipation of an upcoming election.  This bill  
          would also require the judge to disclose campaign contributions  
          if those amounts are reportable under the Political Reform Act. 

                                CHANGES TO EXISTING LAW
           
           Existing law  provides that a judge shall be disqualified if,  
          among other things, one or more of the following is true:

          1.the judge has personal knowledge of disputed evidentiary facts  
            concerning the proceeding;
          2.the judge served as a lawyer in the proceeding or, in any  
            other proceeding involving the same issues, he or she served  
            as a lawyer for a party or gave advice to a party in the  
            proceeding;
          3.the judge has a financial interest in the subject matter in a  
            proceeding or in a party to the proceeding, including if a  
            spouse or minor child living in the household has a financial  
            interest or the judge or his or her spouse is a fiduciary who  
            has a financial interest;
          4.for any reason, the judge believes his or her recusal would  
            further the interests of justice;
          5.for any reason, the judge believes there is a substantial  
            doubt as to his or her capacity to be impartial;
          6.for any reason, a person aware of the facts might reasonably  
            entertain a doubt that the judge would be able to be  
                                                                      



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            impartial; and
          7.the judge has a current arrangement regarding prospective  
            employment or other compensated service as a dispute  
            resolution neutral or is participating in, or has participated  
            in within the last two years, such discussions, as specified.   
            (Code Civ. Proc. Sec. 170.1.)
           
          Existing law  defines "financial interest" to mean ownership of  
          more than a one percent legal or equitable interest in a party,  
          or a legal or equitable interest in a party of a fair market  
          value in excess of one thousand five hundred dollars ($1,500),  
          except as specified. 
           
          Existing law  provides that if a judge disqualifies himself or  
          herself, the judge must notify the presiding judge of the court  
          and may not participate further in the proceeding, unless the  
          parties waive his or her disqualification.  Existing law  
          provides that a judge who disqualifies himself or herself may  
          ask the parties and their attorneys, after disclosing the basis  
          for the disqualification on the record, to waive the  
          disqualification except if the judge has a personal bias or  
          prejudice concerning a party or the judge served as an attorney  
          in the matter, or the judge has been a material witness  
          concerning that matter.  (Code Civ. Proc. Sec. 170.3.)

           Existing law  provides that a judge may not try a civil or  
          criminal action when it is established that the judge is  
          prejudiced against a party or attorney or the interest of a  
          party or attorney appearing in the action or proceeding.   
          Existing law permits a party or attorney to establish this  
          prejudice, within a specified timeframe, by an oral or written  
          motion without notice supported by affidavit or declaration  
          under penalty of perjury or an oral statement under oath that  
          the judge is prejudiced so that the party or attorney cannot or  
          believes he or she cannot have a fair and impartial trial or  
          hearing before the judge.  A party is limited to one such  
          peremptory challenge, except as specified.  (Code Civ. Proc.  
          Sec. 170.6.)
           
          Existing Canons of Judicial Conduct  require that in all trial  
          court proceedings, a judge shall disclose on the record  
          information that is reasonably relevant to the question of  
          disqualification under Code of Civil Procedure section 170.1,  
          even if the judge believes there is no actual basis for  
          disqualification.  (California Code of Judicial Ethics, Canon  
          3E(2).)
                                                                      



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           This bill  would require that a judge be disqualified when he or  
          she has received a contribution of more than $1,500 from a party  
          or counsel in the proceeding and either of the following  
          applies: (1) the contribution was received in support of the  
          judge's last election, if the last election was within the prior  
          six years, or (2) the contribution was received in anticipation  
          of an upcoming election.  

           This bill  would provide that a judge shall be disqualified based  
          on a contribution of a lesser amount if, for any reason, the  
          judge believes his or her recusal would further the interests of  
          justice, the judge believes there is a substantial doubt as to  
          his or her capacity to be impartial, or a person aware of the  
          facts might reasonably entertain a doubt that the judge would be  
          able to be impartial.

           This bill  would provide that this disqualification may be waived  
          by the party that did not make the contribution. 

           This bill  would require a judge to disclose campaign  
          contributions from a party or counsel in a matter that is before  
          the court if those amounts are reportable under the Political  
          Reform Act of 1974, even if the amount would not require  
          disqualification under the bill.  This bill would provide that  
          the manner of disclosure shall be the same as that provided in  
          Canon 3E of the Code of Judicial Ethics. 
                                                  


















                                                                      



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                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            This bill seeks to ensure both the actuality and appearance of  
            judicial impartiality.  In recent years, judicial elections  
            have become increasingly expensive and partisan, often  
            requiring judges to spend considerable time raising money in  
            contested elections.  The most egregious example of this can  
            be seen in  Caperton v. Massey  (2009) in which a judge refused  
            to disqualify himself even though he had received $3 [million]  
            in campaign contributions from one of the parties, the Massey  
            Coal Company.  Many commentators, including former US Supreme  
            Court Justice Sandra Day O'Connor, believe that the recent US  
            Supreme Court opinion in  Citizens United v. FEC  (2010) will  
            increase the amount of money spent in all elections, including  
            judicial elections.

            While large campaign contributions in elections of legislative  
            and executive offices create their own problems, expenditures  
            in judicial elections are even more problematic in that they  
            undermine perceptions of judicial impartiality and erode  
            public trust in the fairness of judicial decisions.  This bill  
            seeks to preserve both the actuality and, as importantly, the  
            appearance of judicial impartiality by requiring judges to  
            disqualify themselves if they have received substantial  
            campaign contributions from a party or counsel appearing  
            before them, in the same manner that they must already  
            disqualify themselves when they have a financial interest in a  
            party or the subject matter of the case. 

          2.  Elected judicial officers: due process clause of the  
            Fourteenth Amendment  
          
          This bill would require a judge to recuse himself or herself  
          when he or she has received a campaign contribution of $1,500 or  
          more from a party or counsel to an action.  As discussed in the  
          U.S. Supreme Court case of Caperton v. A.T. Massey Coal Co.  
          (2009) 129 S. Ct. 2252, a judge's receipt of campaign  
          contributions from a party in an action may present Fourteenth  
          Amendment due process issues for the non-contributing party.  In  
          Caperton, a judge received $3 million in campaign contributions  
          from a party in an action but refused to recuse himself.   
          Caperton demonstrated that judicial interest in a particular  
                                                                      



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          outcome is not premised on a showing of actual bias for or  
          against a party to the action.  Instead, the court noted that  
          "there are objective standards that require recusal when 'the  
          probability of actual bias on the part of the judge or  
          decisionmaker is too high to be constitutionally tolerable.'"   
          In that event, due process requires recusal.  (Id. at 2257,  
          citations omitted.)  The proper determination of whether a judge  
          should be recused after receiving a campaign contribution rests  
          on whether "'under a realistic appraisal of psychological  
          tendencies and human weakness,' the interest 'poses such a risk  
          of actual bias or prejudgment that the practice must be  
          forbidden if the guarantee of due process is to be adequately  
          implemented.'"  (Id. at 2263 citing Withrow v. Larkin (1975) 421  
          U.S. 35, 47.)  The court also held that codes of conduct enacted  
          by each state "serve to maintain the integrity of the judiciary  
          and the rule of law," which is a vital state interest.  (Id. at  
          2266.)  The court went on to hold that "States may choose to  
          adopt recusal standards more rigorous than due process  
          requires."  (Id. at 2267.) 

          Notably, the Caperton court discussed the merits of the West  
          Virginia Code of Judicial Conduct which requires a judge to  
          "disqualify himself or herself in a proceeding in which the  
          judge's impartiality might reasonably be questioned."  (Id. at  
          2266.)  This language is similar to that found in this bill  
          which would require judicial recusal for campaign receipts in  
          amounts less than $1,500 if, for any reason, the judge believes  
          his or her recusal would further the interests of justice, the  
          judge believes there is a substantial doubt as to his or her  
          capacity to be impartial, or a person aware of the facts might  
          reasonably entertain a doubt that the judge would be able to be  
          impartial.  The U.S. Supreme Court has upheld these standards  
          regarding the recusal of elected judicial officers as proper and  
          necessary for due process of litigating parties.

          3.  Corporate campaign contributions to judicial elections  
          
          This bill seeks to regulate elected judicial officers by  
          requiring recusal in cases in which the judicial officer  
          receives campaign contributions from parties or attorneys to the  
          action.  This is a particularly critical issue in light of the  
          U.S. Supreme Court's ruling in Citizens United v. Federal  
          Election Commission (2010) 130 S. Ct. 876.  In Citizens United,  
          the court addressed a provision of federal law which banned  
          corporate independent expenditures for electioneering  
          communications.  The court held that this statute was an  
                                                                      



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          unconstitutional ban on free speech.  (Id. at 898.)   
          Accordingly, corporations are now free to spend unlimited  
          amounts of money investing in campaigns, including judicial  
          campaigns.  Retired U.S. Supreme Court Justice Sandra Day  
          O'Connor has expressed concern about the Citizens United  
          decision, noting in a New York Times article:

            "Judicial elections are just difficult to justify in a  
            constitutional democracy in which even the majority is bound  
            by the law's restraints," . . .  She added that [Citizen's  
            United] was likely to create "an increasing problem for  
            maintaining an independent judiciary.  In invalidating some of  
            the existing checks on campaign spending," Justice O'Connor  
            said, "the majority in Citizens United has signaled that the  
            problem of campaign contributions in judicial elections might  
            get considerably worse and quite soon."  ("Former Justice  
            O'Connor Sees Ill in Election Finance Ruling," New York Times,  
            January 26, 2010.)

          The Commission for Impartial Courts' Final Report contained a  
          number of recommendations, including proposed mandatory  
          disclosure and disqualification requirements similar to those  
          contained in this bill.  The Report notes that "[i]n many  
          states, courts increasingly had come under attack from partisan  
          and special interests seeking to influence judicial  
          decisionmaking, and judicial elections were becoming more like  
          elections for political office:  expensive, negative, and overly  
          politicized.  These kinds of national developments could not be  
          ignored - the question was not if these trends would spread to  
          California, but when."  (Commission for Impartial Courts, Final  
          Report,  Dec. 15, 2009, pg. 1.)

          To counter the potentially negative effects of unlimited  
          corporation campaign contributions, other states have begun  
          enacting laws requiring disclosure and recusal of elected  
          judicial officers.  This bill would provide California with a  
          means of protecting its judicial system in order to maintain  
          fairness and justice to California litigants. 

          4. Mandatory disqualification  
          
          This bill would require a judge to recuse himself or herself  
          when he or she has received a campaign contribution of $1,500 or  
          more from a party or counsel to an action.  This provision is  
          based on Recommendation 30 of the Commission for Impartial  
          Courts' Final Report.  Under existing law, a judge must recuse  
                                                                      



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          himself or herself in various circumstances, including if the  
          judge has personal knowledge of disputed evidentiary facts  
          concerning the proceeding or if, for any reason, the judge  
          believes his or her recusal would further the interests of  
          justice, the judge believes there is a substantial doubt as to  
          his or her capacity to be impartial, or a person aware of the  
          facts might reasonably entertain a doubt that the judge would be  
          able to be impartial.  

          A judge must also recuse himself or herself if he or she has a  
          financial interest in the subject matter of a proceeding or in a  
          party to the proceeding, including if a spouse or minor child  
          living in the household has a financial interest or the judge or  
          his or her spouse is a fiduciary who has a financial interest.   
          Under existing law, "financial interest" is defined to mean  
          ownership of more than a one percent legal or equitable interest  
          in a party, or a legal or equitable interest in a party of a  
          fair market value in excess of one thousand five hundred dollars  
          ($1,500), except as specified.  The author points out, however,  
          that "financial interest" is not defined in a way that would  
          include a campaign contribution by a party or a lawyer.  This  
          bill would address that situation by requiring a judge to recuse  
          himself or herself in instances where he or she has received a  
          campaign contribution in excess of $1,500 from a party or lawyer  
          in the proceeding before the court.  

          In that instance, the procedure by which a judge must disqualify  
          himself or herself would be the same as under existing law for  
          other mandatory recusals.  Under existing law, if a judge  
          disqualifies himself or herself, the judge must notify the  
          presiding judge of the court and may not participate further in  
          the proceeding, unless the parties waive his or her  
          disqualification.  Existing law, Civil Code Section 170.3(b),  
          provides a number of additional safeguards when a judge  
          disqualifies himself or herself and a waiver of that  
          disqualification is at issue.  Those include: 

          1.that a judge who disqualifies himself or herself may ask the  
            parties and their attorneys, after disclosing the basis for  
            the disqualification on the record, to waive the  
            disqualification;
          2.there shall be no waiver if the basis of the waiver is because  
            the judge has a personal bias or prejudice concerning a party  
            or the judge served as an attorney in the matter, or the judge  
            has been a material witness concerning that matter; 
          3.a judge may also not seek to induce a waiver and also must  
                                                                      



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            avoid any effort to determine which lawyers or parties favored  
            or opposed a waiver of disqualification; and 
          4.if grounds for disqualification are first learned of or arise  
            after the judge has made one or more rulings in a proceeding,  
            but before the judge has completed judicial action in a  
            proceeding, the judge shall disqualify himself or herself,  
            unless disqualification is waived, but in the absence of good  
            cause the rulings he or she has made up to that time shall not  
            be set aside by the judge who replaces the disqualified judge.  
             (Code Civ. Proc. Sec. 170.3.)  

          This bill would provide that the disqualification mandated under  
          the bill may be waived by the party that did not make the  
          contribution.  As a result, it is important to ensure that the  
          waiver provisions under this bill are consistent with the waiver  
          provisions under existing law, as described above.  In order to  
          achieve this, the author has agreed to the following amendment:

             Suggested amendment:
             
            On page 5, line 14, delete "The" and insert "Notwithstanding  
            Section 170.3(b)(1), the"

            On page 5, line 15, after "contribution" insert "unless there  
            are other circumstances that would prohibit a waiver pursuant  
            to Section 170.3(b)(2)."

          5.  Disclosure requirements  
          
          Under the Political Reform Act, judicial candidates must file  
          campaign disclosure statements disclosing any contribution of  
          $100 or more.  The author points out that, unlike other  
          candidates to elective office, judicial candidates are not  
          subject to any campaign contribution limits or disclosure  
          requirements alerting parties or counsel to contributions made  
          to the judge by other parties or counsel in the case.  This bill  
          would address this situation by requiring that the judge  
          disclose whether any party or counsel had made a campaign  
          contribution reportable under the Political Reform Act of 1974.   
          The bill would provide that the manner of disclosure shall be  
          the same as that provided in Canon 3E of the Code of Judicial  
          Ethics.  This provision is based on Recommendation 29 of the  
          Commission for Impartial Courts' Final Report, which provided  
          for mandatory disclosure. 

          The bill would provide that the manner of disclosure is the same  
                                                                      



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          as that provided in the California Code of Judicial Ethics,  
          Canon 3E, which requires, in all trial court proceedings, that a  
          judge disclose on the record information that is reasonably  
          relevant to the question of disqualification under Code of Civil  
          Procedure Section 170.1, even if the judge believes there is no  
          actual basis for disqualification.  As a result, under this  
          bill, the disclosure of campaign contributions would be made to  
          the parties and lawyers involved in the matter.

          6.  Judicial Council: support if amended position  
          
          This bill would require judicial recusal in an action if the  
          judicial officer received $1,500 or more in campaign  
          contributions from a party or attorney if the contribution was  
          received in anticipation of an upcoming election or was received  
          in support of the judicial officer's last election, if the last  
          election was within six years.  The Judicial Council, which  
          supports this bill if amended, "believes that six years is  
          unnecessarily long for a mandatory disqualification, and  
          recommends two years as proposed by the [Commission for  
          Impartial Courts].  The commission considered several  
          alternatives, including the entire election cycle, and  
          ultimately agreed that two years is reasonable given '. . . the  
                                                           length of time it takes for matters to move through the courts  
          and the logistical burden if judges were subject to the  
          obligation for too long a period of time.'  Furthermore,  
          requiring disqualification for the entirety of the judge's term  
          might invite parties to manipulate the requirements to their  
          advantage.  For example, a lawyer might choose to contribute  
          more than $1,500 to a disliked judge's campaign for the purpose  
          of ensuring that the judge would be barred from hearing any case  
          involving that party.  While the May 4 amendment to the bill  
          allowing the non-contributing party to waive disqualification  
          goes a long way to mitigate this concern, it does not address  
          the issue completely."

          The author argues against the Judicial Council's proposed  
          two-year amendment because "it makes more sense for the  
          requirement to run for the entire six-year term, since there is  
          no reason to believe that a judge who is potentially influenced  
          by a campaign contribution at two years after the contribution  
          would still be influenced at three years.  Since there is no  
          non-arbitrary period, the logical solution is [to] make the  
          requirement for the term."

          7.   Technical amendments  
                                                                      



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          In order to maintain internal consistency with the rest of Code  
          of Civil Procedure Section 170.1, the following amendments are  
          needed: 

            On page 4, line 38, delete "counsel" and insert "lawyer"

            On page 4, line 39, delete "a matter that is before the court"  
            and insert "the proceeding"

            On page 5, line 9, delete "counsel" and insert "lawyer"



           Support  :  Judicial Council (if amended) 

           Opposition  : None Known 

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :  None Known 

           Prior Vote  :

          Assembly Judiciary Committee (Ayes 10, Noes 0)
          Assembly Floor (Ayes 71, Noes 0)

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