Amended in Senate June 3, 2013

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 Bill No. 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. begin insert Existing law encourages members of judicial selection advisory committees to recommend candidates from diverse backgrounds and cultures, as specified. end insert

This bill would expand these provisions to include the collection of demographic data relative to begin delete physical disability, mental disability, end delete begin insert disability end insert and veteran status, as defined. 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. begin insert The bill would encourage the Governor and members of judicial selection advisory committees to give particular consideration to candidates from diverse backgrounds and cultures, as specified. 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:

SECTION 1.  

Section 12011.5 of the Government Code is
amended to read:

12011.5.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(4) The State Bar and the Administrative Office of the Courts
shall 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 for reporting purposes.

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

(6) For purposes of this subdivision, the collection of
demographic data relative to begin delete physical disability, mental disability, end delete
begin insert disability end insert and veteran status shall 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. The release of this demographic data shall
begin in 2015.

begin insert

(7) For purposes of this subdivision, the following terms have
the following meanings:

end insert begin insert

(i) “Disability” includes mental disability and physical
disability, as defined in subdivisions (j), (l), and (m) of Section
12926.

end insert begin insert

(ii) “Veteran status” has the same meaning as specified in
Section 101(2) of Title 38 of the United States Code.

end insert

(o)  begin delete Members end delete begin insert The Governor and members end insert of judicial selection
advisory committees are encouraged to begin delete recommend end delete begin insert give particular
consideration to end insert candidates from diverse backgrounds and cultures
reflecting the demographics of begin delete California. end delete begin insert California, including
candidates with demographic characteristics underrepresented
among existing judges and justices. end insert

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