BILL ANALYSIS Ó AB 126 Page 1 Date of Hearing: May 3, 2011 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 126 (Davis) - As Amended: April 4, 2011 SUBJECT : JUDICIAL APPOINTMENTS: PUBLICATION OF JUDICIAL SELECTION ADVISORS KEY ISSUE : SHOULD CALIFORNIA GOVERNORS BE REQUIRED TO MAKE PUBLIC THE IDENTITIES OF INDIVIDUALS (OTHER THAN THEIR EMPLOYEES) WHO RECEIVE JUDICIAL APPLICATION MATERIALS TO HELP THE GOVERNOR EVALUATE THE QUALIFICATIONS OF JUDICIAL CANDIDATES? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS This bill is similar to the author's AB 2095 that was passed by this Committee and the Legislature in 2008. That measure was vetoed by then-Governor Schwarzenegger, who stated among other things that the measure would impair the availability of impartial information about prospective judicial candidates, would have a chilling effect upon people willing to provide candid information, and would inappropriately subject such volunteers to political lobbying from various sources. According to the author, this bill seeks to address what he states is an historic lack of transparency in California's judicial selection and evaluation process. Amongst other things, the bill would require the Governor to collect and release, on a continuous basis by posting on his or her official Internet Web site, the names of all persons (other than gubernatorial employees) to whom the Governor or the Governor's representatives have provided judicial application materials about candidates for judicial office. By requiring the current and future governors to make public the identities of participants in any such judicial candidate reviews, this bill will, the author hopes, help strengthen public confidence in the judicial appointment process. Furthermore, the author contends the bill will hopefully help efforts to address the continuing lack of sufficient ethnic, racial and gender diversity in the state's judicial branch by encouraging greater diversity, where needed, amongst those who advise the Governor about judicial candidate qualifications. AB 126 Page 2 There are of course, as then-Governor Schwarzenegger cited in his veto of the prior similar legislation, legitimate constitutional issues regarding such legislatively-mandated openness in the Governor's judicial selection process, e.g., whether requiring making public the names of informal appointments advisors might unduly encroach upon the powers of governors to consult with whomever they wish when selecting judges. The bill is supported by the California State Conference of the NAACP and there is currently no known opposition to the measure. SUMMARY : Seeks to make public the identities of individuals to whom the governor or the governor's representatives have provided judicial application materials or related documentation about candidates for judicial office to assist in the vetting process. Specifically, this bill : 1)Requires the current governor and future governors to make public the identities of those persons participating in the selection and evaluation of judges, exempting from such disclosure all gubernatorial employees. 2)Requires that each member of the designated agency of the State Bar responsible for evaluation of judicial candidates complete a minimum of 2 hours each year of mandatory training in the areas of fairness and bias in the judicial appointments process. 3)Clarifies existing requirements imposed on the Governor, the Bar, and the Administrative Office of the Courts for collecting annual demographic data, including a requirement that, with respect to the collection and release of demographic data, the State Bar and the Administrative Office of the Courts use the ethnic and racial categories designated and used by the United States Census Bureau for the 2010 Census, and each year thereafter for reporting purposes. EXISTING LAW : AB 126 Page 3 1)Provides that the Legislature shall prescribe the number of judges and shall provide for the officers and employees of each superior court. (California Constitution, Art. VI, Section 4.) 2)Requires that on or before March 1 of each year, all of the following shall occur: (a) the Governor shall disclose aggregate statewide demographic data provided by all judicial applicants relative to ethnicity and gender; (b) the designated agency of the State Bar responsible for evaluating judicial candidates shall collect and release statewide demographic data provided by judicial applicants reviewed and a statewide summary of the recommendations of the designated agency by ethnicity and gender; and (c) the Administrative Office of the Courts shall collect and release the demographic data provided by justices and judges relative to ethnicity and gender by specific jurisdiction. (Government Code section 12011.5(n).) COMMENTS : Like AB 2095 from 2008, which passed in the Legislature but was subsequently vetoed by then-Governor Schwarzenegger, this bill seeks to address what the author states is the historic lack of transparency in some aspects of California's judicial evaluation process. That measure was vetoed by then-Governor Schwarzenegger, who stated among other things that the measure would impair the availability of impartial information about prospective judicial candidates, would have a chilling effect upon people willing to provide candid information, and would inappropriately subject such volunteers to political lobbying from various sources. By requiring the current and future governors to make public the identities of participants in any such judicial selection process, this bill will, the author hopes, help strengthen public confidence in the judicial appointment process. Furthermore, the author contends, the bill will help efforts to improve ethnic, racial and gender diversity in the state's judicial branch by encouraging greater diversity where needed in such applicant advisory processes through improved transparency about those who assist the Governor and his or her staff in the process. There are of course legitimate constitutional issues (see below) AB 126 Page 4 regarding mandatory openness in any gubernatorial judicial selection vetting process, i.e., whether requiring the identities of such potentially volunteer assistants to the Governor and his or her staff inappropriately encroaches upon the powers of the current and future governors to consult with whomever they choose when making their constitutionally-reserved decisions selecting judges. AOC Survey Reportedly Demonstrates Bill's Call for Openness of Judicial Candidate Advisors Appears to Mirror Approach of Most Surveyed States : In response to AB 159 (Jones) in 2007, the staff of the AOC conducted an informal survey to determine how other states in the country addressed transparency concerns surrounding these committees in the judicial selection process. The summary provided by the AOC reported that of the 30 or so states contacted by the AOC in 2007 regarding the transparency of their judicial selection process, at least 24 stated they make such membership information public. Several other of the 30 states surveyed essentially reportedly make such data available for public view when requested. Historic Lack of Diversity in the Judiciary A Difficult Nut to Crack But Some Progress Has Been Made in Recent Years With the Encouragement by The Legislature: In recent years there has been increased attention by the Legislature on the continuing need to develop new efforts to address the continuing lack of sufficient diversity in the state's judiciary. For example, when considering the merits of prior legislation seeking to authorize 50 new judgeships, former Speaker Fabian Núñez insisted that before more judgeships would be authorized, new mechanisms would need to be adopted to help address the lack of ethnic and gender diversity within the judicial branch. As part of these efforts, unprecedented new diversity reporting requirements were imposed to begin the challenging process of addressing this problem. The State Bar, the Governor's Office, and the Judicial Council were all required to prepare and issue reports on the diversity of the judicial applicant pool and of the existing judiciary. Reports by these three entities over the past several years demonstrate some progress has been made on the diversity front. Unfortunately, with the long history of inadequately diverse appointments, it has meant that even after a bit more diverse appointments in recent years, much more work remains to be done. Constitutional Issues Triggered by This Legislation; Do AB 126 Page 5 Governors Have the Right to Keep This Information Private : There are substantial constitutional questions regarding mandatory openness in the judicial evaluation and appointment process, namely whether requiring publication of informal advisors to a governor might be found to unduly encroach upon the powers of the state's governors to consult with whomever they choose when selecting judges. It should be anticipated that such concerns may be litigated in the courts if this legislation is enacted. Then-Governor Schwarzenegger's Earlier Veto : As noted above, in September of 2008, then-Governor Schwarzenegger vetoed the prior version of this bill (AB 2095), stating as follows: Having a diverse and qualified judiciary that can effectively serve all Californians is a goal I continue to work towards. Our hard work is reflected in the increased number of diverse judicial applicants. My appointments, of which over 23% to date are ethnic minorities, exceeds the percentages of ethnic minority applicants? I receive information from a myriad of sources, and ? Ŭt]he people this bill seeks to identify perform an advisory role only and a final decision about who advances in the process is exercised exclusively by the Judicial Appointments Secretary, acting on my behalf. Therefore, any contrary characterization does a disservice to the public? ŬThis bill] would impair the availability of impartial information about prospective judicial candidates, have a chilling effect upon people willing to provide candid information, and would subject individuals to political lobbying from various sources. Ultimately, this bill would hinder my ability to most effectively carry out my constitutionally-mandated duty. ARGUMENTS IN SUPPORT : This measure is supported by the California State Conference of the NAACP (NAACP). Reflecting their support for AB 2095 in 2008, the NAACP stated in part that: Without transparency to the process of judicial selection and accountability by those who are given such vital responsibility, we cannot be sure of fairness and integrity in the entire criminal justice system? a continued distrust AB 126 Page 6 of the judicial process will continue to prevail in communities of color without transparency... With anonymity utilized in the current system, it is impossible to determine the social representation of these local committees who assist in the judgeship selection process? In support, the American Federation of State, County and Municipal Employees "believeŬs] that California's judges should reflect the diversity of its population, and this bill would help ensure that applicants of all cultural backgrounds are fairly treated in the appointment process." The California Public Defenders Association, also in support, states that: The local committees receive the candidates' Personal Data Questionnaire (PDQ), and these committees begin to look into the candidate's background. Consequently, these committees make recommendations to the Governor as to who should move along further in the process. Although the Governor is the one empowered to name a candidate to the bench, the individuals who make those recommendations to the Governor are the gatekeepers of the candidate pool itself. These gatekeepers are a key component in the judicial selection process. Despite being an important part of the selection process, their identities are not currently known to the public. The American Civil Liberties Union argues in support that "Ŭd]isclosure of the identity of the members on Judicial Selection Advisory Committees creates greater equity among applicants. No longer will there be the categories of those who know the identity of members and those who don't. Instead, knowing the identities of the screening committee members would allow all applicants to tailor the applications to address their audience." Prior Related Legislation : AB 2095 (Davis) 2008: Similar to this bill, passed this Committee and the Legislature but subsequently vetoed by then-Governor Schwarzenegger. REGISTERED SUPPORT / OPPOSITION : Support AB 126 Page 7 California State Conference of the NAACP (sponsor) ACLU AFSCME California Public Defenders Association Opposition None on file Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334