BILL ANALYSIS Ó
AB 1005
Page 1
Date of Hearing: April 23, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1005 (Alejo) - As Amended: April 18, 2013
SUBJECT : JUDICIAL APPOINTMENTS: DEMOGRAPHIC DATA
KEY ISSUE : SHOULD THE HELPFUL DEMOGRAPHIC INFORMATION ABOUT
JUDICIAL NOMINEES, APPOINTEES AND JUDGES PROVIDED BY VARIOUS
STATE ENTITIES TO THE PUBLIC BE EXPANDED TO INCLUDE DATA
RELATIVE TO DISABILITY AND VETERAN STATUS?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
According to the author, this bill may help remedy the historic
lack of appropriate diversity in the judicial branch by
expanding the demographic data collected and released to the
public to include demographic data relative to the disability
and veteran status of judicial nominees, appointees, and judges
of the State Bar Commission, Governor's Office, and the
Administrative Office of the Courts. Currently, demographic
data relative to ethnicity, race, gender, gender identity and
sexual orientation are required to be collected and released by
the State Bar, the Governor's Office, and the Administrative
Office of the Courts. Supporters of this bill believe that the
judiciary should much more closely reflect the diverse
population of California, which includes California veterans and
those with disabilities. The measure is strongly supported by a
broad host of groups, including disability rights groups,
women's rights organizations, legal aid groups, health care
organizations, bar association groups, and many others. There
is no known opposition to the measure.
SUMMARY : Seeks to expand the demographic data collected and
released, on an aggregate basis, to include demographic data
relative to disability and veteran status of judicial nominees,
appointees, and judges of the State Bar Commission (JNE),
Governor's Office and the Administrative Office of the Courts
(AOC). Specifically, this bill expands the demographic data
collected and released, on an aggregate statewide basis, to
include demographic data relative to disability, as defined by
AB 1005
Page 2
state law, and veteran status, as defined in Section 101(2) of
Title 38 of the United States Code, of judicial nominees of the
Governor's Office, the State Bar Commission, and the
Administrative Office of the Courts.
EXISTING LAW :
1)Provides that the Legislature shall prescribe the manner of
judges and shall provide for the officers and employees of
each superior court. (California Constitution, Art. VI,
Section 4.)
2)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. (Government Code Section,
12011.5(a). All further statutory references are to this
statutory code, unless otherwise indicated.)
3)Requires, on or before March 1 of each year for the prior
calendar year, the Governor to collect and release, on an
aggregate statewide basis, all of the following:
a) Demographic data relative to ethnicity, race, 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.
b) Demographic data relative to ethnicity, race, gender,
gender identity, and sexual orientation of all judicial
appointments or nominations as provided by the judicial
appointee or nominee. (Section 12011.5(n)(1)(A).)
4)Requires, on or before March 1 of each year for the prior
calendar year, the designated agency of the State Bar
responsible for evaluation of judicial candidates to collect
and release, on an aggregate statewide basis, all of the
following:
a) Statewide demographic data provided by all judicial
applicants reviewed relative to ethnicity, race, gender,
AB 1005
Page 3
gender identity, sexual orientation, and areas of legal
practice and employment.
b) The statewide summary of the recommendations of the
designated agency of the State Bar by ethnicity, race,
gender, gender identity, sexual orientation, and areas of
legal practice and employment. (Section 12011.5(n)(1)(B).)
5)Requires, on or before March 1 of each year for the prior
calendar year, the Administrative Office of the Courts to
collect and release the demographic data provided by justices
and judges described in Article VI of the California
Constitution relative to ethnicity, race, gender, gender
identity, and sexual orientation by specific jurisdiction.
(Section 12011.5(n)(1)(C).)
6)Provides that any demographic data collected from judicial
applicants, nominees and appointees shall disclose only
aggregated statistical data and shall not identify any
individual applicant, justice, or judge. (Section
12011.5(n)(2).)
7)Provides that 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 are absolutely privileged from
disclosure and confidential. (Section 12011.5(f).)
COMMENTS : This bill seeks to help remedy the historic lack of
appropriate diversity in the judicial branch by expanding the
demographic data collected and released to the public to include
demographic data relative to the disability and veteran status
of judicial nominees, appointees, and judges of the State Bar
Commission, Governor's Office, and the Administrative Office of
the Courts. Currently, demographic data relative to ethnicity,
race, gender, gender identity and sexual orientation are
required to be collected and released by the State Bar, the
Governor's Office, and the Administrative Office of the Courts.
Supporters of this bill believe that the judiciary should much
more closely reflect the diverse population of California, which
includes California veterans and those with disabilities.
In support of the measure, the author writes:
AB 1005
Page 4
Having professionals with diverse backgrounds on the
bench improves Californians' access to justice.
California can certainly do a better job to ensure
that our judicial bench is more reflective of our
state's population. AB 1005 is a step to move in that
direction. Members of the judicial selection advisory
committees are encouraged to recommend candidates that
reflect the demographics of California. Without the
collection of data regarding veterans and persons with
disabilities, it will remain difficult to truly assess
the diversity of our judiciary.
This Measure Supplements Existing Law Mandating the Collection
and Release of Other Helpful Demographic Data Relating to
Judicial Applicants, Appointees or Nominees, Candidates, and
Justices and Judges. Under existing law, the Governor, the
designated agency of the State Bar (the JNE Commission)
responsible for the evaluation of judicial candidates, and the
Administrative Office of the Courts (AOC) are required to
annually collect demographic data relating to judicial
applicants, appointees and nominees, candidates and justices and
judges relative to ethnicity, race, gender, gender identity and
sexual orientation. This bill would simply expand these
provisions to require the collection and release of demographic
data relative to disability and veteran status.
The Historic Lack of Diversity in the Judiciary Has Seen
Progress in Recent Years with the Encouragement by the
Legislature . In recent years, there has been increased
attention by the Legislature and recent governors on the
continuing need to develop new efforts to address the continuing
lack of sufficient diversity in the state's judiciary. For
example, when considering the merits of prior legislation
seeking to authorize 50 new judgeships, former Speaker Fabian
Núñez insisted that before more judgeships would be authorized,
new mechanisms would need to be adopted to help address the lack
of ethnic and gender diversity within the judicial branch. As
part of these efforts, unprecedented new diversity reporting
requirements were imposed to begin the challenging process of
addressing this problem. Only last year, the Legislature
passed, and the Governor signed SB 182 (Corbett) Chap. 720,
Stats. 2012, which expanded the diversity reporting requirements
to require the collection and release of demographic data
relative to gender identity and sexual orientation for judicial
AB 1005
Page 5
applicants, appointees, and sitting judges.
The State Bar, the Governor's Office, and the Administrative
Office of the Courts are all required to prepare and issue
reports on the diversity of the judicial applicant pool and of
the existing judiciary. Reports by these three entities over
the past several years demonstrate that some progress has been
made in addressing the lack of diversity in the judiciary-but
much more work remains to be done. Recently, the California
State Bar, in conjunction with the California Judicial Council,
recommended that the "Governor's Office should appreciate and
recognize the contributions of lawyers with disabilities and
endeavor to include more of such lawyers among the Governor's
appointees. All agencies reporting annual demographic data
should set a timetable for implementing a process that allows
for the collection of information on applicants, appointees, and
sitting judges who choose to disclose that they have a
disability." (Continuing a Legacy of Excellence: A Summit on
Achieving Diversity in the Judiciary, 2011 Judicial Diversity
Summit Final Report and Recommendations, Aug. 1, 2012, available
at: http://www.courts.ca.gov/documents/jc-20121026-item1.pdf.)
Supporters of this bill point out that according to the United
States Census Bureau approximately 5.9 million Californians have
disabilities, and the California Department of Veterans Affairs
reports that just over 1.8 million Californians are veterans.
In spite of these significant numbers, data on veterans and
persons with disabilities is not yet provided in the process of
judicial appointments. This bill seeks to improve the record of
judicial appointees with disabilities and veteran status to
better reflect their numbers in and contribution to California.
Notwithstanding Some Assumptions to the Contrary, the Disclosure
of Demographic Data by Individual Judicial Nominees, Appointees,
and Judges Is Purely Voluntary : Under current law, which this
bill adds to, the decision to disclose demographic data is
voluntary and any judge, justice, applicant, appointee, or
nominee may refuse to respond to any request for demographic
data. The 'Applicant for Appointment as Judge to the Superior
Court', made available by the Office of the Governor,
specifically provides that, "To assist the Governor's Office
with [the] reporting obligations [under Government Code Section
12011.5(n)], applicants are asked to voluntarily provide the
information below. Your answers to these questions are purely
voluntary and you may freely skip any or all of these
AB 1005
Page 6
questions." (Emphasis added.) Furthermore, under existing law,
the privacy interests of judicial nominees, appointees, and
judges are protected because the demographic data is released on
an aggregate basis and the demographic data cannot identify any
individual applicant, justice, or judge. (Government Code
Section 12011.5(n)(C)(3).)
ARGUMENTS IN SUPPORT : Reflecting the strong support of the
disability rights community, this measure is supported by the
Disability Rights Education and Defense Fund, a leading national
civil rights law and policy center dedicated to advancing the
civil and human rights of people with disabilities. This group
states that:
It is important to have judges who understand and
respect the rights of people with disabilities as it
is to have judges who understand and respect the
rights of women and people of different racial and
ethnic backgrounds, different sexual orientations and
different experiential backgrounds. To this end, the
bench must reflect the diversity of our country,
including the millions of Americans with disabilities.
In order to achieve diversity we believe that it is
appropriate to provide for the collection of
demographic data relative to disability status as a
way to ensure that there are no barriers that would in
any way inhibit qualified individuals of diverse
backgrounds-including those with disabilities-to
receive consideration for judicial positions.
The Bar Association of San Francisco (BASF), also in support of
the measure, states that:
BASF is a strong proponent of transparency in
reporting and data with regards to judicial
applicants, nominees, appointees, justices and judges.
We believe it is very important that our judicial
bench reflects our state's demographics, including but
not limited to, veteran status and persons with
disabilities. We believe this demographic data and
information are critical pieces of the analysis that
should be done by the Governor when making judicial
appointments. This bill is a step in the right
AB 1005
Page 7
direction.
The Disability Rights Legal Center argues in support that "as
with other people within protected statuses, people with
disabilities are frequently subjected to stereotyping and
unconscious bias. These cultural biases become norms and may
infect decision making by the very institutions we look to for
legal recourse to redress discrimination. Our judiciary must
reflect the diversity of California's population in order to
eliminate discrimination and bias."
Prior Related Legislation: SB 182 (Corbett) Chap. 720, Stats.
2012, expanded the diversity reporting requirements to require
the collection and release of demographic data relative to
voluntarily-provided gender identity and sexual orientation data
about judicial applicants, appointees, and sitting judges.
REGISTERED SUPPORT/OPPOSITION:
Support
American Bar Association
California NOW
California Women Lawyers
California Women's Law Center
The Legal Aid Society/Employment Law Center of San Francisco
AHEAD (Association on Higher Education and Disability)
Disability Rights California
Disability Rights Education & Defense Fund
Disability Rights Legal Center
The Bar Association of San Francisco
Epilepsy California
Legal Aid Association of California
Public Interest Law Project
Everyone Reading, Inc.
National Health Law Program
The Judge David L. Bazelon Center for Mental Health Law
Michael Waterstone, Loyola Marymount School of Law
Julie K. Waterstone, Southwestern Law School
Stephen A. Rosenbaum, UC Berkeley School of Law
Opposition
None on file
AB 1005
Page 8
Analysis Prepared by : Drew Liebert and Rebecca Kramer / JUD. /
(916) 319-2334