BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 126 (Davis)
As Amended May 16, 2011
Hearing Date: June 14, 2011
Fiscal: Yes
Urgency: No
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SUBJECT
Courts: Judicial Appointments
DESCRIPTION
This bill would require the Governor to post on his or her Web
site the names of all persons to whom the Governor (or his or
her representatives) has provided judicial application materials
in order to determine whether to submit the applicant's
application to the State Bar for evaluation, or to assist the
Governor in the decision of whether an applicant should be
appointed as a judge after he or she has been evaluated by the
State Bar.
This bill would also require members of the State Bar's
Commission on Judicial Nominees Evaluation (JNE Commission) to
complete a minimum of two hours of training annually in the
areas of fairness and bias in the judicial appointments process.
This bill would require the State Bar, in collecting and
releasing statewide demographic data on all judicial applicants,
and the Administrative Office of the Courts (AOC), in collecting
and releasing demographic data on justices and judges, to use
specified ethnic and racial categories.
BACKGROUND
Existing law confers the power to appoint judges upon the
Governor and, when there is a vacancy in a judicial office,
requires him or her to first submit the names of all potential
appointees to the JNE Commission for evaluation of their
judicial qualifications. In order to help vet judicial
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applicants, governors have used local evaluation committees in
the judicial selection process. The makeup, role, and powers of
these local committees are not set forth in statute, but instead
exist at the pleasure of and for the purpose of the Governor,
and the names of committee members are not public. In 2008, the
author carried AB 2095 which, according to the author, sought to
bring transparency to this process by requiring the Governor to
release the names of all persons who have been provided judicial
application materials by the Governor or his or her
representatives to assist in the judicial selection process.
This bill is nearly identical to AB 2095 which was vetoed by
Governor Schwarzenegger (see Comment 6 for veto message).
Under existing law, the Governor, the JNE Commission, and the
AOC must annually collect and release demographic data relative
to ethnicity, race, and gender provided by judicial applicants,
nominees, appointees, justices, and judges. Providing the
specified information is voluntary, and any release of the data
must be done on an aggregated statistical basis and cannot
identify any individual applicant, justice, or judge. These
provisions of law were added in order to better understand the
ethnic and gender diversity, or lack thereof, of the judicial
branch and judicial applicants. (See SB 56 (Dunn, Ch. 390,
Stats. 2006) and AB 159 (Jones, Ch. 722, Stats. 2007).)
Although the self-reporting of demographic data is voluntary,
the information contained in the annual reports has been helpful
to a better understanding of the gender and ethnic make-up of
the judiciary and judicial applicants. A Daily Journal article
earlier this year indicated that "Ŭt]he percentages of women and
minority judges in California has continued to increase at a
slow but constant pace over the past several years. But
diversity on the bench doesn't match that of judicial candidates
. . . " ("Judicial Diversity Slowly Rises," Daily Journal,
March 1, 2011.)
The AOC's most recent report indicated that in 2010 women made
up 30.8 percent of all justices and judges, compared to 27.1
percent when reporting began in 2007. That same report
indicated that the percentage of Hispanic or Latino judges
increased to 8.2 percent from 6.3 percent in 2007; Asian judges
increased to 5.4 percent from 4.4 percent; and Black or
African-American judges increased to 5.6 percent from 4.4
percent. With respect to judicial applicants and appointments,
the 2010 report from Governor Schwarzenegger indicated that
Hispanics made up 7.6 percent of all judicial applicants, Asians
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7.1 percent, and Blacks or African-Americans 7.6 percent. Of
judges appointed by Schwarzenegger in 2010, 13 percent were
Hispanic, 8 percent Asian, and 11.6 percent Black or
African-American.
As a comparison, however, recently released numbers from the
2010 U.S. Census indicate that Hispanics or Latinos make up 37.6
percent of California's population while Asians make up 13
percent and Blacks or African-Americans 6.2 percent.
(http://2010. census.gov/2010census/data/, visited June 7,
2011.)
This bill seeks to help diversify the bench and open to the
public a part of the judicial selection process by, among other
things, requiring the Governor to release the names of all
persons who have been provided judicial application materials by
the Governor or his or her representatives to assist in the
judicial selection process.
CHANGES TO EXISTING LAW
1.Existing law confers the power to appoint judges upon the
Governor. (Cal. Const. Art. VI, Sec. 16.)
Existing law provides that in the event of a vacancy in a
judicial office to be filled by appointment of the Governor,
or when the Governor is required under the Constitution to
nominate a candidate, the Governor must first submit the names
of all potential appointees or nominees to a designated agency
of the State Bar (the JNE Commission) for evaluation of their
judicial qualifications. (Gov. Code Sec. 12011.5(a).)
Existing law requires that the JNE Commission consist of
attorney members and public members and provides that it shall
be broadly representative of the ethnic, gender, and racial
diversity of California's population. (Gov. Code Sec.
12011.5(b).)
Existing law provides that upon receipt from the Governor of the
names of judicial applicants, the JNE Commission shall
confidentially evaluate and determine the qualifications of
each candidate with respect to his or her ability to discharge
judicial duties and, within 90 days, must report to the
Governor its confidential recommendation. (Gov. Code Sec.
12011.5(c).)
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This bill would require the Governor to post on his or her Web
site the names of all persons to whom the Governor or his or
her representatives have provided judicial application
materials for the purpose of determining whether to submit the
candidate's application to the State Bar for evaluation, or to
assist in the decision of whether an applicant should be
appointed as a judge after he or she has been evaluated by the
State Bar. This provision would not apply to the Governor's
employees, including the Governor's Legal Affairs Secretary
and Judicial Appointments Secretary.
This bill would require members of the JNE Commission to
complete a minimum of two hours of training annually in the
areas of fairness and bias in the judicial appointments
process.
2.Existing law requires that on or after March 1 every year, all
of the following shall occur:
a. the Governor shall collect and release the following
information on an aggregated statistical basis: (i)
demographic data provided by all judicial applicants
relative to ethnicity, race, and gender; (ii) demographic
data relative to ethnicity, race, and gender, as provided
by all judicial applicants, including both those whose
names have been, and those whose names have not been,
submitted to the JNE Commission for evaluation; and (iii)
demographic data relative to ethnicity, race, and gender,
as provided by all judicial appointees or nominees;
b. the JNE Commission shall collect and release the
following information on an aggregated statistical basis:
(i) statewide demographic data provided by all judicial
applicants reviewed regarding ethnicity, race, and gender,
and areas of legal practice and employment; and (ii) a
statewide summary of recommendations by ethnicity, race,
and gender and areas of legal practice and employment; and
c. the AOC shall collect and release demographic data
provided by justices and judges relative to ethnicity,
race, and gender by specific jurisdiction. (Gov. Code Sec.
12011.5(n).)
Existing law provides that the demographic data collected from
judicial applicants, nominees, and appointees shall be
disclosed only on an aggregated statistical basis and shall
not identify any individual applicant, justice, or judge.
(Gov. Code Sec. 12011.5(n)(3).)
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Existing law specifies that all communications with the
Governor or his or her authorized agents or employees and to
the State Bar in furtherance of the purposes of the law
relating to judicial offices are "absolutely privileged from
disclosure and confidential." (Gov. Code Sec. 12011.5(f).)
This bill would require the State Bar, in collecting and
releasing statewide demographic data on all judicial
applicants, and the AOC, in collecting and releasing
demographic data on justices and judges, to use the following
ethnic and racial categories: American Indian or Alaska
Native, Asian, Black or African American, Hispanic or Latino,
Native Hawaiian or other Pacific Islander, White, some other
race, and more than one race, as those categories are defined
by the U.S. Census Bureau for the 2010 Census.
This bill would specify that the reports described above shall
cover the preceding calendar year.
COMMENT
1. Stated need for the bill
The author writes:
The state's judicial appointments process uses anonymous
individuals on local committees (Judicial Selection Advisory
Committees) from various regions, who vet judicial aspirants
prior to submitting the applications to the State Bar's
Commission on Judicial Nominees Evaluation (JNE) for a formal
and more open evaluation. There's no certainty of diversity
on these local committees, and the results of their work leave
the public unsure of fairness. Transparency in this process
will allow for increased fairness and inclusion.
Due to the wide disparity in sentencing (often depending on a
defendant's ethnicity), it is imperative to consider diverse
backgrounds when determining who should judge accused
citizens. With the anonymity of the current vetting system,
it is impossible to determine the diversity of the local
committees who assist in the judicial selection process. Our
judicial system will benefit from greater transparency in this
area.
Supporter California State Conference of the NAACP echoes this
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concern, writing that the judicial selection process "requires
increased clarity because currently there is a lack of diversity
among our state's appointed judges. This has resulted in a
stark disparity in sentencing practices depending on the
ethnicity of the defendant. . . . ŬAB 126] would greatly
assist citizens who seek to gather information on and
understanding of the roots to our judicial diversity problems
and our sentencing disparities."
In further support, the Charles Houston Bar Association and
California Public Defenders Association write:
The selection of potential judicial candidates to be
considered by the Governor is the most critical step in the
process. For many decades, Governors have utilized the local
judicial advisory committees to screen out applicants to the
bench. 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. .
. . Despite being an important part of the selection
process, their identities are not currently known to the
public.
2. Public disclosure of the names of individuals who assist in
the judicial selection process
This bill would require the Governor to post on his or her Web
site the names of all persons to whom the Governor or his or her
representatives have provided judicial application materials for
the purpose of determining whether to submit the candidate's
application to the State Bar for evaluation, or to assist in the
decision of whether an applicant should be appointed as a judge
after he or she has been evaluated by the State Bar. This bill
would thus require the public disclosure of the names of
individuals who assist the Governor at two critical points in
the judicial selection process: (1) prior to the applicant's
name being submitted to the JNE Commission for evaluation and
(2) after the JNE Commission has evaluated the applicant, but
before he or she has been appointed.
This provision, which would not apply to the Governor's
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employees, including his or her Legal Affairs Secretary and
Judicial Appointments Secretary, is nearly identical to the
author's AB 2095 of 2008 which was vetoed by Governor
Schwarzenegger.
3. Survey on membership disclosure practices in other states
In 2007, AOC staff conducted an informal survey regarding
membership disclosure practices in other states. That survey
found that, at the time, 24 of the 30 states contacted by AOC
staff indicated that they make judicial nominations commissions'
membership information public. Of those 24, 21 of them appear
to be formal bodies similar to the JNE Commission in that they
are created either by the state's constitution, or by executive
order. The other three are informal systems (Maine, Ohio, and
Wisconsin), perhaps similar to our local committees, and make
the names of their members public.
4. Mandatory training requirements for JNE commissioners codify
existing practice
This bill would require members of the JNE Commission to
complete a minimum of two hours of training annually in the
areas of fairness and bias in the judicial appointments process.
According to a representative of the State Bar, members of the
JNE Commission are currently required to attend two hours of
diversity training each year as a condition of their voluntary
service as a JNE member. The training is conducted by the AOC's
Center for Judicial Education and Research and is offered for
MCLE credit. In comparison, AB 126 would require two hours of
training in the areas of fairness and bias in the judicial
appointments process. According to the Bar representative, the
current training already covers those areas, but could be
extended to cover those materials for the mandated two hours.
The other materials could then be covered in the extended time.
5. Consistency in data reporting desired
Currently, three different bodies-the Governor, the AOC, and the
JNE Commission-are required to report statewide demographic data
concerning judicial applicants and candidates and justices and
judges. In order to achieve consistency in the data reported,
this bill would require the JNE Commission and the AOC to use
the following specified ethnic and racial categories: American
Indian or Alaska Native, Asian, Black or African American,
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Hispanic or Latino, Native Hawaiian or other Pacific Islander,
White, some other race, and more than one race, as those
categories are defined by the U.S. Census Bureau for the 2010
Census.
This bill would also clarify that the annual reports completed
by the three bodies cover the preceding calendar year.
6. AB 2095 veto message
In vetoing AB 2095, Governor Schwarzenegger stated:
. . . I receive information from a myriad of sources, and the
only mandatory gateway to be appointed to the bench is the
evaluation process done by the State Bar's Commission on
Judicial Nominees Evaluation. Potential candidates are put
forward by many organizations or individuals and are
thoroughly vetted before receiving an appointment. My
Judicial Appointments Secretary corresponds directly with bar
associations, other organizations and individuals when being
apprised of a potentially outstanding candidate. The 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.
The California Constitution requires me to appoint individuals
to the bench who are equal to the great task of serving this
state. It is a duty I take very seriously and is why
receiving independent, thoughtful and honest information from
numerous sources is crucial in determining an applicant's
ability to perform this role. Assembly Bill 2095 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.
In response to the veto message, the author's office notes that
"No matter the results, the state's judicial appointments
process remains non-transparent. The public has no idea who
vets judicial applicants before the local Judicial Selection
Advisory Committees. This bill will make the Judicial
application process more transparent and Fair."
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Staff notes also that the names of JNE Commission members are
public and available on the State Bar's web site at
http://calbar.ca.gov/AboutUs/JudicialNomineesEvaluation/Roster.as
px
Support : American Civil Liberties Union; American Federation of
State, County and Municipal Employees (AFSCME), AFL-CIO;
California Communities United Institute; California Public
Defenders Association; California State Conference of the
National Association for the Advancement of Colored People
(NAACP); Charles Houston Bar Association; Congress of Racial
Equality of California; Wiley W. Manuel Bar Association of
Sacramento County
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : SB 182 (Corbett) would add gender
identity and sexual orientation to the list of demographic data
provided by judicial applicants, nominees, appointees, justices,
and judges required to be collected and released by the
Governor, the JNE Commission, and the AOC. This measure is
pending in the Assembly.
Prior Legislation :
AB 2095 (Davis, 2008) See Background.
AB 159 (Jones, Ch. 722, Stats. 2007) See Background.
SB 56 (Dunn, Ch. 390, Stats. 2006) See Background.
Prior Vote :
Assembly Floor (Ayes 48, Noes 27)
Assembly Appropriations Committee (Ayes 11, Noes 5)
Assembly Judiciary Committee (Ayes 7, Noes 2)
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