Amended in Assembly May 16, 2013

Amended in Assembly May 14, 2013

Amended in Assembly April 30, 2013

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

(Coauthor: Assembly Member Achadjian)

(Coauthor: Senator Corbett)

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 wouldbegin delete, beginning on January 1, 2014,end delete expand these provisions to include the collection of demographic data relative to physical disability, mental disability, and veteran status, as definedbegin delete, and would require the data to be released beginning in 2015, as specifiedend delete.begin insert The bill would provide that the collection of this demographic data would be required only for judicial applicants, candidates, appointees, nominees, justices, and judges who apply, or are reviewed, appointed, nominated, or elected, on or after January 1, 2014, and would require the release of this data to begin in 2015.end insert

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
P3    1appointments process at an orientation for new members. If the
2member serves more than one term, the member shall complete
3an additional 60 minutes of that training during the member’s
4service on the designated agency of the State Bar responsible for
5evaluation of judicial candidates.

6(c) Upon receipt from the Governor of the names of candidates
7for judicial office and their completed personal data questionnaires,
8the State Bar shall employ appropriate confidential procedures to
9evaluate and determine the qualifications of each candidate with
10regard to his or her ability to discharge the judicial duties of the
11office to which the appointment or nomination shall be made.
12Within 90 days of submission by the Governor of the name of a
13potential appointee for judicial office, the State Bar shall report in
14confidence to the Governor its recommendation whether the
15candidate is exceptionally well qualified, well qualified, qualified,
16or not qualified and the reasons therefor, and may report, in
17confidence, other information as the State Bar deems pertinent to
18the qualifications of the candidate.

19(d) In determining the qualifications of a candidate for judicial
20office, the State Bar shall consider, among other appropriate
21factors, his or her industry, judicial temperament, honesty,
22objectivity, community respect, integrity, health, ability, and legal
23experience. The State Bar shall consider legal experience broadly,
24including, but not limited to, litigation and nonlitigation experience,
25legal work for a business or nonprofit entity, experience as a law
26professor or other academic position, legal work in any of the three
27branches of government, and legal work in dispute resolution.

28(e) The State Bar shall establish and promulgate rules and
29procedures regarding the investigation of the qualifications of
30candidates for judicial office by the designated agency. These rules
31and procedures shall establish appropriate, confidential methods
32for disclosing to the candidate the subject matter of substantial and
33credible adverse allegations received regarding the candidate’s
34health, physical or mental condition, or moral turpitude which,
35unless rebutted, would be determinative of the candidate’s
36unsuitability for judicial office. No provision of this section shall
37be construed as requiring that any rule or procedure be adopted
38that permits the disclosure to the candidate of information from
39which the candidate may infer the source, and no information shall
40either be disclosed to the candidate nor be obtainable by any
P4    1process that would jeopardize the confidentiality of
2communications from persons whose opinion has been sought on
3the candidate’s qualifications.

4(f) All communications, written, verbal, or otherwise, of and to
5the Governor, the Governor’s authorized agents or employees,
6including, but not limited to, the Governor’s Legal Affairs
7Secretary and Appointments Secretary, or of and to the State Bar
8in furtherance of the purposes of this section are absolutely
9privileged from disclosure and confidential, and any
10communication made in the discretion of the Governor or the State
11Bar with a candidate or person providing information in furtherance
12of the purposes of this section shall not constitute a waiver of the
13privilege or a breach of confidentiality.

14(g) If the Governor has appointed a person to a trial court who
15has been found not qualified by the designated agency, the State
16Bar may make public this fact after due notice to the appointee of
17its intention to do so, but that notice or disclosure shall not
18constitute a waiver of privilege or breach of confidentiality with
19respect to communications of or to the State Bar concerning the
20qualifications of the appointee.

21(h) If the Governor has nominated or appointed a person to the
22Supreme Court or court of appeal in accordance with subdivision
23(d) of Section 16 of Article VI of the California Constitution, the
24Commission on Judicial Appointments may invite, or the State
25Bar’s governing board or its designated agency may submit to the
26commission, its recommendation, and the reasons therefor, but
27that disclosure shall not constitute a waiver of privilege or breach
28of confidentiality with respect to communications of or to the State
29Bar concerning the qualifications of the nominee or appointee.

30(i) No person or entity shall be liable for any injury caused by
31any act or failure to act, be it negligent, intentional, discretionary,
32or otherwise, in the furtherance of the purposes of this section,
33including, but not limited to, providing or receiving any
34information, making any recommendations, and giving any reasons
35therefor. As used in this section, the term “State Bar” means its
36governing board and members thereof, the designated agency of
37the State Bar and members thereof, and employees and agents of
38the State Bar.

39(j) At any time prior to the receipt of the report from the State
40Bar specified in subdivision (c) the Governor may withdraw the
P5    1name of any person submitted to the State Bar for evaluation
2pursuant to this section.

3(k) A candidate for judicial office shall not be appointed until
4the State Bar has reported to the Governor pursuant to this section,
5or until 90 days have elapsed after submission of the candidate’s
6name to the State Bar, whichever occurs earlier. The requirement
7of this subdivision shall not apply to any vacancy in judicial office
8occurring within the 90 days preceding the expiration of the
9Governor’s term of office, provided, however, that with respect
10to those vacancies and with respect to nominations pursuant to
11subdivision (d) of Section 16 of Article VI of the California
12Constitution, the Governor shall be required to submit any
13candidate’s name to the State Bar in order to provide an
14opportunity, if time permits, to make an evaluation.

15(l) Nothing in this section shall be construed as imposing an
16additional requirement for an appointment or nomination to judicial
17office, nor shall anything in this section be construed as adding
18any additional qualifications for the office of a judge.

19(m) The Board of Governors of the State Bar shall not conduct
20or participate in, or authorize any committee, agency, employee,
21or commission of the State Bar to conduct or participate in, any
22evaluation, review, or report on the qualifications, integrity,
23diligence, or judicial ability of any specific justice of a court
24provided for in Section 2 or 3 of Article VI of the California
25Constitution without prior review and statutory authorization by
26the Legislature, except an evaluation, review, or report on potential
27judicial appointees or nominees as authorized by this section.

28The provisions of this subdivision shall not be construed to
29prohibit a member of the State Bar from conducting or participating
30in an evaluation, review, or report in his or her individual capacity.

31(n) (1) Notwithstanding any other provision of this section, but
32subject to paragraph (2), on or before March 1 of each year for the
33prior calendar year, all of the following shall occur:

34(A) The Governor shall collect and release, on an aggregate
35statewide basis, all of the following:

36(i) Demographic data provided by all judicial applicants relative
37to ethnicity, race, physical disability, as defined in subdivision (l)
38of Section 12926, mental disability, as defined in subdivision (j)
39of Section 12926, veteran status, as defined in Section 101(2) of
P6    1Title 38 of the United States Code, gender, gender identity, and
2sexual orientation.

3(ii) Demographic data relative to ethnicity, race, physical
4disability, as defined in subdivision (l) of Section 12926, mental
5disability, as defined in subdivision (j) of Section 12926, veteran
6status, as defined in Section 101(2) of Title 38 of the United States
7Code, gender, gender identity, and sexual orientation as provided
8by all judicial applicants, both as to those judicial applicants who
9have been and those who have not been submitted to the State Bar
10for evaluation.

11(iii) Demographic data relative to ethnicity, race, physical
12 disability, as defined in subdivision (l) of Section 12926, mental
13disability, as defined in subdivision (j) of Section 12926, veteran
14status, as defined in Section 101(2) of Title 38 of the United States
15Code, gender, gender identity, and sexual orientation of all judicial
16appointments or nominations as provided by the judicial appointee
17or nominee.

18(B) The designated agency of the State Bar responsible for
19evaluation of judicial candidates shall collect and release both of
20the following on an aggregate statewide basis:

21(i) Statewide demographic data provided by all judicial
22applicants reviewed relative to ethnicity, race, physical disability,
23as defined in subdivision (l) of Section 12926, mental disability,
24as defined in subdivision (j) of Section 12926, veteran status, as
25 defined in Section 101(2) of Title 38 of the United States Code,
26gender, gender identity, sexual orientation, and areas of legal
27practice and employment.

28(ii) The statewide summary of the recommendations of the
29designated agency of the State Bar by ethnicity, race, physical
30disability, as defined in subdivision (l) of Section 12926, mental
31disability, as defined in subdivision (j) of Section 12926, veteran
32status, as defined in Section 101(2) of Title 38 of the United States
33Code, gender, gender identity, sexual orientation, and areas of
34legal practice and employment.

35(C) The Administrative Office of the Courts shall collect and
36release the demographic data provided by justices and judges
37described in Article VI of the California Constitution relative to
38ethnicity, race, physical disability, as defined in subdivision (l) of
39Section 12926, mental disability, as defined in subdivision (j) of
40Section 12926, veteran status, as defined in Section 101(2) of Title
P7    138 of the United States Code, gender, gender identity, and sexual
2orientation by specific jurisdiction.

3(2) For purposes of subparagraph (A) of paragraph (1), in the
4year following a general election or recall election that will result
5in a new Governor taking office prior to March 1, the departing
6Governor shall provide all of the demographic data collected for
7the year by that Governor pursuant to this subdivision to the
8incoming Governor. The incoming Governor shall then be
9responsible for releasing the provided demographic data, and the
10demographic data collected by that incoming Governor, if any,
11prior to the March 1 deadline imposed pursuant to this subdivision.

12(3) Any demographic data disclosed or released pursuant to this
13subdivision shall disclose only aggregated statistical data and shall
14not identify any individual applicant, justice, or judge.

15(4) The State Bar and the Administrative Office of the Courts
16shall use the following ethnic and racial categories: American
17Indian or Alaska Native, Asian, Black or African American,
18Hispanic or Latino, Native Hawaiian or other Pacific Islander,
19White, some other race, and more than one race, as those categories
20are defined by the United States Census Bureau for the 2010
21Census for reporting purposes.

22(5) Any demographic data disclosed or released pursuant to this
23subdivision shall also indicate the percentage of respondents who
24declined to respond.

25(6) For purposes of this subdivision, thebegin delete Governor, the State
26Bar, and the Administrative Office of the Courts shall collect
27demographic data relative to physical disability, mental disability,
28or veteran status beginning on January 1, 2014, and shall release
29this data beginning in 2015, pursuant to paragraph (1).end delete
begin insert collection
30of demographic data relative to physical disability, mental
31disability, and veteran status shall be required only for judicial
32applicants, candidates, appointees, nominees, justices, and judges
33who apply, or are reviewed, appointed, nominated, or elected, on
34or after January 1, 2014. The release of this demographic data
35shall begin in 2015.end insert

36(o) Members of judicial selection advisory committees are
37encouraged to recommend candidates from diverse backgrounds
38and cultures reflecting the demographics of California.

39(p) If any provision of this section other than a provision relating
40to or providing for confidentiality or privilege from disclosure of
P8    1any communication or matter, or the application of the provision
2to any person or circumstances, is held invalid, the remainder of
3this section to the extent it can be given effect, or the application
4of the provision to persons or circumstances other than those as
5to which it is held invalid, shall not be affected thereby, and to this
6extent the provisions of this section are severable. If any other act
7of the Legislature conflicts with the provisions of this section, this
8section shall prevail.



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