BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2487
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 2487 (Feuer)
          As Amended August 2, 2010
          Majority vote 
           
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          |ASSEMBLY:  |71-0 |(May 6, 2010)   |SENATE: |34-0 |(August 9,     |
          |           |     |                |        |     |2010)          |
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           Original Committee Reference:    JUD.  

           SUMMARY  :  Requires the disqualification of a superior court  
          judge who has received a campaign contribution in excess of  
          $1,500 from a party or lawyer in a proceeding 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  
            lawyer in a proceeding 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 lawyer in a proceeding before the  
            court, even if the amount is not sufficient to require  
            disqualification.  

          3)Provides that the disqualification required under this bill  
            may be waived by the non-contributing party, as specified.

           The Senate amendments  : 








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          1)Change the word "counsel" to "lawyer" in appropriate places in  
            order to achieve consistency with usage in other parts of the  
            Code of Civil Procedure.

          2)Change the word "matter" before the court to "procedure"  
            before the court in appropriate places in order to achieve  
            consistency with usage in other parts of the Code of Civil  
            Procedure.

          3)Clarify the permissive waiver of disqualification provisions  
            in this bill only apply so long as there are no other  
            circumstances that would prohibit disqualification as provided  
            by law. 

           AS PASSED BY THE ASSEMBLY  , this bill was substantially similar  
          to the version approved by the Senate.
           
          FISCAL EFFECT  :  None 

           COMMENTS  :  This bill 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 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  








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          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

          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  
          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  








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          appearance of judicial impartiality.  It does not, the author  
          contends, 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 


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