BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 126
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          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.  








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          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  :  








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          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) 








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          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 








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          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 








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               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 
           








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          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