BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 126| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 126 Author: Davis (D) Amended: 5/16/11 in Assembly Vote: 21 SENATE JUDICIARY COMMITTEE : 4-1, 6/14/11 AYES: Evans, Blakeslee, Corbett, Leno NOES: Harman SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 48-27, 5/23/11 - See last page for vote SUBJECT : Courts: judicial appointments SOURCE : Author DIGEST : This bill requires the Governor to post on his/her Web site the names of all persons to whom the Governor (or his/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/she has been evaluated by the State Bar. This bill also requires members of the State Bar's Commission on Judicial Nominees Evaluation to complete a minimum of two hours of training annually in the areas of fairness and bias in the judicial appointments process. This bill requires the State Bar, in collecting and releasing statewide CONTINUED AB 126 Page 2 demographic data on all judicial applicants, and the Administrative Office of the Courts, in collecting and releasing demographic data on justices and judges, to use specified ethnic and racial categories. ANALYSIS : Existing law confers the power to appoint judges upon the Governor. (California Constitution Article VI, Section 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 (Commission on Judicial Nominees Evaluation ÝJNE Commission]) for evaluation of their judicial qualifications. (Government Code ÝGOV] Section 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 Section 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/her ability to discharge judicial duties and, within 90 days, must report to the Governor its confidential recommendation. (GOV Section 12011.5(c)) This bill requires the Governor to post on his/her Web site the names of all persons to whom the Governor or his/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/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. CONTINUED AB 126 Page 3 This bill requires 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. Existing law requires that on or after March 1 every year, all of the following shall occur: 1. The Governor shall collect and release the following information on an aggregated statistical basis: (A) demographic data provided by all judicial applicants relative to ethnicity, race, and gender; (B) 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 (C) demographic data relative to ethnicity, race, and gender, as provided by all judicial appointees or nominees; 2. The JNE Commission shall collect and release the following information on an aggregated statistical basis: (A) statewide demographic data provided by all judicial applicants reviewed regarding ethnicity, race, and gender, and areas of legal practice and employment; and (B) a statewide summary of recommendations by ethnicity, race, and gender and areas of legal practice and employment; and 3. The Administrative Office of the Courts (AOC) shall collect and release demographic data provided by justices and judges relative to ethnicity, race, and gender by specific jurisdiction. (GOV Section 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 Section 12011.5(n)(3)) Existing law specifies that all communications with the Governor or his/her authorized agents or employees and to the State Bar in furtherance of the purposes of the law CONTINUED AB 126 Page 4 relating to judicial offices are "absolutely privileged from disclosure and confidential." (GOV Section 12011.5(f)) This bill requires 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 United States Census Bureau for the 2010 Census. This bill specifies that the reports described above shall cover the preceding calendar year. Prior Legislation AB 2095 (Davis), Session of 2007-08, passed the Senate (22-14) on August 14, 2008, but was vetoed by Governor Schwarzenegger. In his veto message, he 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 CONTINUED AB 126 Page 5 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." FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 6/27/11) American Civil Liberties Union American Federation of State, County and Municipal Employees, AFL-CIO California Communities United Institute California Public Defenders Association California State Conference of the National Association for the Advancement of Colored People Charles Houston Bar Association Congress of Racial Equality of California Wiley W. Manuel Bar Association of Sacramento County ARGUMENTS IN SUPPORT : 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 CONTINUED AB 126 Page 6 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 National Association for the Advancement of Colored People echoes this 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. . . . ÝAB 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." ASSEMBLY FLOOR : 48-27, 5/23/11 AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block, Blumenfield, Bonilla, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Davis, Dickinson, Eng, Feuer, Fong, Fuentes, CONTINUED AB 126 Page 7 Galgiani, Gordon, Hall, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Lara, Bonnie Lowenthal, Mendoza, Mitchell, Monning, Perea, V. Manuel Pérez, Portantino, Skinner, Solorio, Swanson, Torres, Wieckowski, Williams, Yamada, John A. Pérez NOES: Achadjian, Bill Berryhill, Conway, Donnelly, Fletcher, Beth Gaines, Garrick, Gatto, Grove, Hagman, Halderman, Harkey, Jeffries, Jones, Knight, Logue, Mansoor, Miller, Morrell, Nestande, Nielsen, Norby, Olsen, Silva, Smyth, Valadao, Wagner NO VOTE RECORDED: Cook, Furutani, Gorell, Ma, Pan RJG:kc 6/28/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED