BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 2487|
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                                 THIRD READING


          Bill No:  AB 2487
          Author:   Feuer (D)
          Amended:  8/2/10 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  4-0, 6/29/10
          AYES:  Corbett, Harman, Hancock, Leno
          NO VOTE RECORDED:  Walters

           ASSEMBLY FLOOR  :  71-0, 5/6/10 - See last page for vote


           SUBJECT  :    Judges:  disqualification

           SOURCE  :     Author


           DIGEST  :    This bill requires that a judge be disqualified  
          when he or she has received a contribution of more than  
          $1,500 from a party or lawyer 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 also requires the judge  
          to disclose campaign contributions if those amounts are  
          reportable under the Political Reform Act.

           ANALYSIS :    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  
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             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 impartial.

          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 of Civil Procedures  
             Section 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  

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          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 of Civil Procedures  
          Section 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 of Civil Procedure Section 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).)
          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 provides 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  

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          impartial.

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

          This bill requires 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  
          provides that the manner of disclosure shall be the same as  
          that provided in Canon 3E of the Code of Judicial Ethics.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  7/9/10)

          Judicial Council 


           ARGUMENTS IN SUPPORT  :    The author's office 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  

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          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."


           ASSEMBLY FLOOR  : 
          AYES:  Adams, Ammiano, Anderson, Arambula, Beall, Bill  
            Berryhill, Tom Berryhill, Blakeslee, Blumenfield,  
            Bradford, Brownley, Buchanan, Caballero, Carter, Chesbro,  
            Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,  
            Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,  
            Furutani, Gaines, Galgiani, Garrick, Hagman, Hall,  
            Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,  
            Jeffries, Jones, Knight, Lieu, Logue, Bonnie Lowenthal,  
            Ma, Miller, Monning, Nava, Nestande, Niello, Nielsen, V.  
            Manuel Perez, Portantino, Ruskin, Salas, Saldana, Silva,  
            Smyth, Solorio, Audra Strickland, Swanson, Torlakson,  
            Torres, Torrico, Tran, Villines, Yamada, John A. Perez
          NO VOTE RECORDED:  Bass, Block, Charles Calderon, Fuller,  
            Gilmore, Mendoza, Norby, Skinner, Vacancy


          RJG:do  8/3/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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