Amended in Assembly April 18, 2013

Amended in Assembly March 14, 2013

California Legislature—2013–14 Regular Session

Assembly BillNo. 1005


Introduced by Assembly Member Alejo

begin insert

(Coauthor: Senator Corbett)

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February 22, 2013


An act to amend Section 12011.5 of the Government Code, relating to judicial appointments.

LEGISLATIVE COUNSEL’S DIGEST

AB 1005, as amended, Alejo. Judicial appointments: demographic data.

Existing law requires the Governor, the designated agency of the State Bar responsible for the evaluation of judicial candidates, and the Administrative Office of the Courts to annually collect demographic data relating to judicial applicants, judicial appointees or nominees, judicial candidates, and justices and judges, as specified, relative to ethnicity, race, and gender. These entities are required to release the demographic data on or before March 1 of each year.

This bill would expand these provisions to include the collection and release of demographic data relative tobegin insert physicalend insert disability and veteran status, as defined.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 12011.5 of the Government Code is
2amended to read:

3

12011.5.  

(a) In the event of a vacancy in a judicial office to
4be filled by appointment of the Governor, or in the event that a
5declaration of candidacy is not filed by a judge and the Governor
6is required under subdivision (d) of Section 16 of Article VI of the
7California Constitution to nominate a candidate, the Governor
8shall first submit to a designated agency of the State Bar of
9California the names of all potential appointees or nominees for
10the judicial office for evaluation of their judicial qualifications.

11(b) The membership of the designated agency of the State Bar
12responsible for evaluation of judicial candidates shall consist of
13attorney members and public members with the ratio of public
14members to attorney members determined, to the extent practical,
15by the ratio established in Section 6013.5 of the Business and
16Professions Code. It is the intent of this subdivision that the
17designated agency of the State Bar responsible for evaluation of
18judicial candidates shall be broadly representative of the ethnic,
19gender, and racial diversity of the population of California and
20composed in accordance with Sections 11140 and 11141. The
21further intent of this subdivision is to establish a selection process
22for membership on the designated agency of the State Bar
23responsible for evaluation of judicial candidates under which no
24member of that agency shall provide inappropriate, multiple
25representation for purposes of this subdivision. Each member of
26the designated agency of the State Bar responsible for evaluation
27of judicial candidates shall complete a minimum of 60 minutes of
28training in the areas of fairness and bias in the judicial
29appointments process at an orientation for new members. If the
30member serves more than one term, the member shall complete
31an additional 60 minutes of that training during the member’s
32service on the designated agency of the State Bar responsible for
33evaluation of judicial candidates.

34(c) Upon receipt from the Governor of the names of candidates
35for judicial office and their completed personal data questionnaires,
36the State Bar shall employ appropriate confidential procedures to
37evaluate and determine the qualifications of each candidate with
38regard to his or her ability to discharge the judicial duties of the
P3    1office to which the appointment or nomination shall be made.
2Within 90 days of submission by the Governor of the name of a
3potential appointee for judicial office, the State Bar shall report in
4confidence to the Governor its recommendation whether the
5candidate is exceptionally well qualified, well qualified, qualified,
6or not qualified and the reasons therefor, and may report, in
7confidence, other information as the State Bar deems pertinent to
8the qualifications of the candidate.

9(d) In determining the qualifications of a candidate for judicial
10office, the State Bar shall consider, among other appropriate
11factors, his or her industry, judicial temperament, honesty,
12objectivity, community respect, integrity, health, ability, and legal
13experience. The State Bar shall consider legal experience broadly,
14including, but not limited to, litigation and nonlitigation experience,
15legal work for a business or nonprofit entity, experience as a law
16professor or other academic position, legal work in any of the three
17branches of government, and legal work in dispute resolution.

18(e) The State Bar shall establish and promulgate rules and
19procedures regarding the investigation of the qualifications of
20candidates for judicial office by the designated agency. These rules
21and procedures shall establish appropriate, confidential methods
22for disclosing to the candidate the subject matter of substantial and
23credible adverse allegations received regarding the candidate’s
24health, physical or mental condition, or moral turpitude which,
25unless rebutted, would be determinative of the candidate’s
26unsuitability for judicial office. No provision of this section shall
27be construed as requiring that any rule or procedure be adopted
28that permits the disclosure to the candidate of information from
29which the candidate may infer the source, and no information shall
30either be disclosed to the candidate nor be obtainable by any
31process that would jeopardize the confidentiality of
32communications from persons whose opinion has been sought on
33the candidate’s qualifications.

34(f) All communications, written, verbal, or otherwise, of and to
35the Governor, the Governor’s authorized agents or employees,
36including, but not limited to, the Governor’s Legal Affairs
37Secretary and Appointments Secretary, or of and to the State Bar
38in furtherance of the purposes of this section are absolutely
39privileged from disclosure and confidential, and any
40communication made in the discretion of the Governor or the State
P4    1Bar with a candidate or person providing information in furtherance
2of the purposes of this section shall not constitute a waiver of the
3privilege or a breach of confidentiality.

4(g) If the Governor has appointed a person to a trial court who
5has been found not qualified by the designated agency, the State
6Bar may make public this fact after due notice to the appointee of
7its intention to do so, but that notice or disclosure shall not
8constitute a waiver of privilege or breach of confidentiality with
9respect to communications of or to the State Bar concerning the
10qualifications of the appointee.

11(h) If the Governor has nominated or appointed a person to the
12Supreme Court or court of appeal in accordance with subdivision
13(d) of Section 16 of Article VI of the California Constitution, the
14Commission on Judicial Appointments may invite, or the State
15Bar’s governing board or its designated agency may submit to the
16commission, its recommendation, and the reasons therefor, but
17that disclosure shall not constitute a waiver of privilege or breach
18of confidentiality with respect to communications of or to the State
19Bar concerning the qualifications of the nominee or appointee.

20(i) No person or entity shall be liable for any injury caused by
21any act or failure to act, be it negligent, intentional, discretionary,
22or otherwise, in the furtherance of the purposes of this section,
23including, but not limited to, providing or receiving any
24information, making any recommendations, and giving any reasons
25therefor. As used in this section, the term “State Bar” means its
26governing board and members thereof, the designated agency of
27the State Bar and members thereof, and employees and agents of
28the State Bar.

29(j) At any time prior to the receipt of the report from the State
30Bar specified in subdivision (c) the Governor may withdraw the
31name of any person submitted to the State Bar for evaluation
32pursuant to this section.

33(k) A candidate for judicial office shall not be appointed until
34the State Bar has reported to the Governor pursuant to this section,
35or until 90 days have elapsed after submission of the candidate’s
36name to the State Bar, whichever occurs earlier. The requirement
37of this subdivision shall not apply to any vacancy in judicial office
38occurring within the 90 days preceding the expiration of the
39Governor’s term of office, provided, however, that with respect
40to those vacancies and with respect to nominations pursuant to
P5    1subdivision (d) of Section 16 of Article VI of the California
2Constitution, the Governor shall be required to submit any
3candidate’s name to the State Bar in order to provide an
4opportunity, if time permits, to make an evaluation.

5(l) Nothing in this section shall be construed as imposing an
6additional requirement for an appointment or nomination to judicial
7office, nor shall anything in this section be construed as adding
8any additional qualifications for the office of a judge.

9(m) The Board of Governors of the State Bar shall not conduct
10or participate in, or authorize any committee, agency, employee,
11or commission of the State Bar to conduct or participate in, any
12evaluation, review, or report on the qualifications, integrity,
13diligence, or judicial ability of any specific justice of a court
14provided for in Section 2 or 3 of Article VI of the California
15Constitution without prior review and statutory authorization by
16the Legislature, except an evaluation, review, or report on potential
17judicial appointees or nominees as authorized by this section.

18The provisions of this subdivision shall not be construed to
19prohibit a member of the State Bar from conducting or participating
20in an evaluation, review, or report in his or her individual capacity.

21(n) (1) Notwithstanding any other provision of this section, but
22subject to paragraph (2), on or before March 1 of each year for the
23prior calendar year, all of the following shall occur:

24(A) The Governor shall collect and release, on an aggregate
25statewide basis, all of the following:

26(i) Demographic data provided by all judicial applicants relative
27to ethnicity, race,begin insert physicalend insert disability, as definedbegin delete by the federal
28Americans with Disabilities Act (42 U.S.C. Sec. 12102),end delete
begin insert in
29subdivision (l) of Section 12926,end insert
veteran status, as defined in
30Section 101(2) of Title 38 of the United States Code, gender,
31gender identity, and sexual orientation.

32(ii) Demographic data relative to ethnicity, race,begin insert physicalend insert
33 disability, as definedbegin delete by the federal Americans with Disabilities
34Act (42 U.S.C. Sec. 12102),end delete
begin insert in subdivision (l) of Section 12926,end insert
35 veteran status, as defined in Section 101(2) of Title 38 of the United
36States Code, gender, gender identity, and sexual orientation as
37provided by all judicial applicants, both as to those judicial
38applicants who have been and those who have not been submitted
39to the State Bar for evaluation.

P6    1(iii) Demographic data relative to ethnicity, race,begin insert physicalend insert
2 disability, as definedbegin delete by the federal Americans with Disabilities
3Act (42 U.S.C. Sec. 12102),end delete
begin insert in subdivision (l) of Section 12926,end insert
4 veteran status, as defined in Section 101(2) of Title 38 of the United
5States Code, gender, gender identity, and sexual orientation of all
6judicial appointments or nominations as provided by the judicial
7appointee or nominee.

8(B) The designated agency of the State Bar responsible for
9evaluation of judicial candidates shall collect and release both of
10the following on an aggregate statewide basis:

11(i) Statewide demographic data provided by all judicial
12applicants reviewed relative to ethnicity, race,begin insert physicalend insert disability,
13as definedbegin delete by the federal Americans with Disabilities Act (42
14U.S.C. Sec. 12102),end delete
begin insert in subdivision (l) of Section 12926,end insert veteran
15status, as defined in Section 101(2) of Title 38 of the United States
16Code, gender, gender identity, sexual orientation, and areas of
17legal practice and employment.

18(ii) The statewide summary of the recommendations of the
19designated agency of the State Bar by ethnicity, race,begin insert physicalend insert
20 disability, as definedbegin delete by the federal Americans with Disabilities
21Act (42 U.S.C. Sec. 12102),end delete
begin insert in subdivision (l) of Section 12926,end insert
22 veteran status, as defined in Section 101(2) of Title 38 of the United
23States Code, gender, gender identity, sexual orientation, and areas
24of legal practice and employment.

25(C) The Administrative Office of the Courts shall collect and
26release the demographic data provided by justices and judges
27described in Article VI of the California Constitution relative to
28ethnicity, race,begin insert physicalend insert disability, as definedbegin delete by the federal
29Americans with Disabilities Act (42 U.S.C. Sec. 12102),end delete
begin insert in
30subdivision (l) of Section 12926,end insert
veteran status, as defined in
31Section 101(2) of Title 38 of the United States Code, gender,
32gender identity, and sexual orientation by specific jurisdiction.

33(2) For purposes of subparagraph (A) of paragraph (1), in the
34year following a general election or recall election that will result
35in a new Governor taking office prior to March 1, the departing
36Governor shall provide all of the demographic data collected for
37the year by that Governor pursuant to this subdivision to the
38incoming Governor. The incoming Governor shall then be
39responsible for releasing the provided demographic data, and the
P7    1demographic data collected by that incoming Governor, if any,
2prior to the March 1 deadline imposed pursuant to this subdivision.

3(3) Any demographic data disclosed or released pursuant to this
4subdivision shall disclose only aggregated statistical data and shall
5not identify any individual applicant, justice, or judge.

6(4) The State Bar and the Administrative Office of the Courts
7shall use the following ethnic and racial categories: American
8Indian or Alaska Native, Asian, Black or African American,
9Hispanic or Latino, Native Hawaiian or other Pacific Islander,
10White, some other race, and more than one race, as those categories
11are defined by the United States Census Bureau for the 2010
12Census for reporting purposes.

13(5) Any demographic data disclosed or released pursuant to this
14subdivision shall also indicate the percentage of respondents who
15declined to respond.

16(o) Members of judicial selection advisory committees are
17encouraged to recommend candidates from diverse backgrounds
18and cultures reflecting the demographics of California.

19(p) If any provision of this section other than a provision relating
20to or providing for confidentiality or privilege from disclosure of
21any communication or matter, or the application of the provision
22to any person or circumstances, is held invalid, the remainder of
23this section to the extent it can be given effect, or the application
24of the provision to persons or circumstances other than those as
25to which it is held invalid, shall not be affected thereby, and to this
26extent the provisions of this section are severable. If any other act
27of the Legislature conflicts with the provisions of this section, this
28section shall prevail.



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