BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 1005 (Alejo)
As Amended June 3, 2013
Hearing Date: June 11, 2013
Fiscal: Yes
Urgency: No
RD
SUBJECT
Judicial Appointments: Demographic Data
DESCRIPTION
This bill would add disability and veteran status to the list of
demographic data that is provided annually by judicial
applicants, nominees, appointees, justices, and judges, and
required to be collected and released by the Governor, the
Commission on Judicial Nominees Evaluation of the State Bar, and
the Administrative Office of the Courts. This 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.
BACKGROUND
Under existing law, the Governor, the Commission on Judicial
Nominees Evaluation (JNE Commission), and the Administrative
Office of the Courts (AOC) must collect and release demographic
data relative to ethnicity, race, and gender provided by
judicial applicants, nominees, appointees, justices, and judges.
(See SB 56 (Dunn, Ch. 390, Stats. 2006) and AB 159 (Jones, Ch.
722, Stats. 2007).) Since 2011, with the enactment of SB 182
(Corbett, Ch. 720, Stats. 2011), those entities must collect
data regarding gender identity and sexual orientation, as well.
Providing the specified information is voluntary, and any
release of the data must be done on an aggregated statistical
basis and cannot identify any individual applicant, justice, or
judge. These disclosure requirements were added in order to
(more)
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better understand the diversity, or lack thereof, of the
judicial branch and judicial applicants.
The AOC's most recent report indicated that in 2012 women made
up 31.3 percent of all justices and judges, compared to 27.1
percent when reporting began in 2007. That same report
indicated that the percentage of Hispanic or Latino judges
increased to 8.3 percent from 6.3 percent in 2007, Asian judges
increased to 5.8 percent from 4.4 percent; and Black or
African-American judges increased to 6.1 percent from 4.4
percent. Also, the 2012 report noted that the number of persons
who provided no response or declined to indicate their race or
ethnicity shrank to 3.0 percent, down from 9.9 percent in 2007.
Pursuant to SB 182 (Corbett, Ch. 720, Stats. 2011), the AOC
report also indicated that, in 2012, 58.6 percent identified as
heterosexual; 1.1 percent identified as gay or lesbian,
respectively; 0.06 percent identified as transgender; none
identified as bisexual, and 39.1 percent provided no response or
declined to indicate their sexual orientation/gender identity
altogether.
With respect to judicial applicants and appointees, a 2012
report from Governor Brown indicated that women made up 36.3
percent of all judicial applicants and 34.7 percent of
appointees. The report also indicated, among other things, that
Hispanics made up 13.8 percent of all judicial applicants and
17.3 percent of appointees; Asians made up 7.8 percent and 4
percent, respectively; and Blacks or African-Americans made up 8
percent and 9.3 percent, respectively. That report also
indicates that 5.3 percent of applicants, as well as appointees,
identified as LGBT (i.e. lesbian, gay, bisexual or transgender).
By way of comparison, however, information from the 2010 U.S.
Census indicate that Hispanics or Latinos make up 37.6 percent
of California's population while Asians make up 13 percent and
Blacks or African-Americans 6.2 percent. (2010 Census Results,
California [as of June
1, 2013].) Data offered in relation to SB 182 (Corbett, Ch.
720, Stats. 2012) indicated that as of October 2006, there were
nearly 1.4 million gay, lesbian, and bisexual Californians, or
5.2 percent of the population (transgender Californians were not
included). (See "Same-sex Couples and the Gay, Lesbian,
Bisexual Population: New Estimates from the American Community
Survey," The Williams Institute, UCLA School of Law, October
2006.)
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Similar to prior measures, this bill seeks to engender a similar
understanding of how the disabled and veteran communities are
represented in the judiciary by providing for demographic data
relative to disability and veteran status to be collected on a
voluntary basis and reported on an aggregated statistical basis.
CHANGES TO EXISTING LAW
1. 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 (the Commission on Judicial Nominees
Evaluation (JNE Commission)) for evaluation of their judicial
qualifications. (Gov. Code Sec. 12011.5(a).)
Existing law requires that all of the following occur on or
before March 1 every year:
The Governor must collect and release the following on
an aggregated statistical basis: (i) demographic data
provided by all judicial applicants relative to ethnicity,
race, gender, gender identity, and sexual orientation; (ii)
demographic data relative to ethnicity, race, gender,
gender identity, and sexual orientation as provided by all
judicial applicants, including both those whose names have
been, and whose names have not been, submitted to the JNE
Commission for evaluation; and (iii) demographic data
relative to ethnicity, race, gender, gender identity, and
sexual orientation, as provided by all judicial appointees
or nominees.
The JNE Commission must collect and release the
following on an aggregated statistical basis: (i) statewide
demographic data provided by all judicial applicants
reviewed regarding ethnicity, race, gender, gender
identity, and sexual orientation and areas of legal
practice and employment; and (ii) a statewide summary of
recommendations by ethnicity, race, gender, gender
identity, and sexual orientation and areas of legal
practice and employment.
The Administrative Office of the Courts (AOC) must
collect and release demographic data provided by justices
and judges relative to ethnicity, race, gender, gender
identity and sexual orientation by specific jurisdiction.
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(Gov. Code Sec. 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. Code Sec. 12011.5(n)(3).)
Existing law specifies that all communications with the
Governor or his or her authorized agents or employees and to
the State Bar in furtherance of the purposes of the law
relating to judicial offices are "absolutely privileged from
disclosure and confidential." (Gov. Code Sec. 12011.5(f).)
This bill would add disability and veteran status to the list
of self-reported demographic data required to be collected and
released by the Governor, the JNE Commission, and the AOC. As
under existing law, providing the specified information would
be voluntary and any release of the data must be aggregated
statistical data and cannot identify any individual applicant,
justice, or judge.
This bill would limit the collection of demographic data
relative to disability and veteran status to judicial
applicants, candidates, appointees, nominees, justices, and
judges who apply, or are reviewed, appointed, nominated, or
elected, on or after January 1, 2014, and specify that the
release of this data is to begin in 2015.
2. Existing law provides that "mental disability" includes,
but is not limited to, all of the following:
having any mental or psychological disorder or
condition, such as intellectual disability, organic brain
syndrome, emotional or mental illness, or specific learning
disabilities, that limits a major life activity, as
specified;
any other mental or psychological disorder or condition
not described above that requires special education or
related services;
having a record or history of a mental or psychological
disorder or condition described by either of the above
provisions, which is known to the employer or other entity
covered by this part;
being regarded or treated by the employer or other
entity covered by this part as having, or having had, any
mental condition that makes achievement of a major life
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activity difficult; or
being regarded or treated by the employer or other
entity covered by this part as having, or having had, a
mental or psychological disorder or condition that has no
present disabling effect, but that may become a mental
disability as described in either of the first two
provisions above. (Gov. Code Sec. 12926(j).)
Existing law provides that "physical disability" includes, but
is not limited to, all of
the following:
having any physiological disease, disorder, condition,
cosmetic disfigurement, or anatomical loss that does both
of the following: (i) affects one or more of the certain
body systems; and (ii) limits a major life activity, as
specified.
any other health impairment not described above that
requires special education or related services;
having a record or history of a disease, disorder,
condition, cosmetic disfigurement, anatomical loss, or
health impairment described in the above provisions which
is known to the employer or other entity covered by this
part;
being regarded or treated by the employer or other
entity covered by this part as having, or having had, any
physical condition that makes achievement of a major life
activity difficult; or
being regarded or treated by the employer or other
entity covered by this part as having, or having had, a
disease, disorder, condition, cosmetic disfigurement,
anatomical loss, or health impairment that has no present
disabling effect but may become a physical disability as
described in either of the first two provisions above.
(Gov. Code Sec. 12926(l).)
Existing law specifies that neither "mental disability," nor
"physical disability" includes sexual behavior disorders,
compulsive gambling, kleptomania, pyromania, or psychoactive
substance use disorders resulting from the current unlawful
use of controlled substances or other drugs. (Gov. Code Sec.
12926(j), (l).)
Existing law specifies that, notwithstanding the above
definitions, if the definition of "disability" used in the
federal Americans with Disabilities Act of 1990 would result
in broader protection of the civil rights of individuals with
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a mental disability or physical disability, as defined under
the state law outlined above, or would include any medical
condition not included within those definitions, then that
broader protection or coverage shall be deemed incorporated by
reference into, and shall prevail over conflicting provisions
of, the definitions in state law. (Gov. Code Sec. 12926(m).)
Existing federal law defines "veteran" to mean a person who
served in the active military, naval, or air service, and who
was discharged or released therefrom under conditions other
than dishonorable. (38 U.S.C. Sec. 101(2).)
This bill would define disability to include both physical and
mental disability, pursuant to the existing definitions above.
This bill would define veteran status pursuant to existing
federal law above.
3. Existing law provides that members of the judicial
selection advisory committees are encouraged to recommend
candidates from diverse backgrounds and cultures reflecting
the demographics of California. (Gov. Code Sec. 12926(o).)
This bill would instead encourage the Governor and the
judicial advisory committees to give particular consideration
to candidates from diverse backgrounds and cultures reflecting
the demographics of California, including candidates with
demographic characteristics underrepresented among existing
judges and justices.
COMMENT
1. Stated need for the bill
According to the author:
Having professionals with diverse backgrounds on the bench
improves Californians' access to justice. 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 disabled persons, it will remain difficult to truly assess
the diversity of our judiciary.
According to the California Department of Veterans Affairs,
just over 1.8 million Californians are [v]eterans. Likewise,
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the United States Census Bureau reported that approximately
5.9 million Californians have a disability. In spite of these
significant numbers, veteran and disabled communities are not
considered when recommending [judicial] candidates that
reflect the demographics of California.
This bill adds veterans and persons with a disability to the
list of demographic data provided by judicial applicants,
nominees, appointees, justices, and judges.
The California Attorneys for Criminal Justice, in support, add
that "[b]y creating a broader pool of judicial applicants, the
more diverse the judges are in their own life experience, the
better than can be to understand the defendants before them."
The American Bar Association [ABA], in support of the addition
of disability status to the demographic data that is collected,
writes that "[j]udicial diversity helps ensure that officials
representing the judiciary reflect those whom the system serves,
thus helping to promote public confidence in the decisions
rendered. In recognition of the need for data collection to
determine progress in attaining diversity, the ABA House of
Delegates in 1991 adopted a policy calling for 'studies of the
existence, if any, of bias in the federal judicial system,
including bias based on race, ethnicity, gender, age, sexual
orientation and disability.' Based on this policy, we believe
it is appropriate to provide for collection 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."
2. Bill would provide for collection and release of
self-reported demographic data concerning disability and
veteran status, consistent with existing law
This bill would add disability and veteran status to the list of
demographic data provided by judicial applicants, nominees,
appointees, justices, and judges. That data is required to be
collected and released by March 1 of every year by the Governor,
the Commission on Judicial Nominees Evaluation (JNE Commission),
and the Administrative Office of the Courts (AOC). This 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
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1, 2014, and would require the release of this data to begin in
2015. In accordance with existing law, the first date of
release of this information would, therefore, be March 1, 2015.
Under existing law, a judicial applicant, nominee, appointee,
justice, or judge is not required to provide his or her
demographic data relative to ethnicity, race, and gender. The
provision of that information is entirely voluntary. For
example, the "Application for Appointment as Judge of the
Superior Court" states: "State law requires the Governor's
Office to collect, on an aggregate statewide basis, demographic
data relative to race, ethnicity, gender, gender identity and
sexual orientation [citation omitted]. To assist the Governor's
Office with these reporting obligations, applicants are asked to
voluntarily provide this information below. YOUR ANSWERS TO
THESE QUESTIONS ARE PURELY VOLUNTARY AND YOU MAY FREELY SKIP ANY
OR ALL OF THESE QUESTIONS AND GO DIRECTLY TO QUESTION 7. If you
choose to respond, use the categories below to choose the one(s)
with which you most closely identify." The scroll down menu for
ethnicity then gives applicants the option of choosing "American
Indian or Alaska Native," "Asian," "Black or African American,"
"Hispanic," "Native Hawaiian or Other Pacific Islander," "White
or Caucasian," or "Other." Similarly, under it gives the
options of "Heterosexual," "Lesbian," "Gay," "Bisexual," or
"Transgender" for sexual orientation/gender identity.
Like existing law, this bill's addition of disability and
veteran status to the list of demographic data provided by
judicial applicants, nominees, appointees, justices, and judges
would be voluntary. Staff notes that, at least in terms of the
categories of race and ethnicity, the number of individuals who
have declined to respond to questions about their race or
ethnicity has decreased. With respect to judges and justices,
the percentage of respondents who declined to disclose their
race or ethnicity has declined since reporting first began in
2007. In 2007, according to the AOC's annual report, 9.9
percent of judges and justices provided no response or declined
to indicate their race and ethnicity. In 2010, that number had
declined to 3.5 percent. As of 2012, the number shrank further
to only 3.0 percent. In contrast, the AOC report indicated that
39.1 percent provided no response or declined to indicate their
sexual orientation/gender identity. The most recent JNE
Commission report similarly indicates that with respect to
evaluated candidates in 2012, 60 percent of women, and 70
percent of men declined to answer the sexual orientation/gender
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identity question.
With respect to this bill, data provided by the author's office
indicates that approximately 5.9 million Californians have a
disability, and that California's veteran population is
estimated at over 1.84 million, or 8.3 percent of the national.
(See Employment Development Department, Services for People with
Disability Statistics,
[as of June 1, 2013]; California Department of
Veterans Affairs, Snapshot of California Veterans (Dec. 30,
2012).) As a matter of public policy, while the quality of
information depends on the willingness of respondents to provide
the information, the addition of disability and veteran status
would enhance the information regarding the diversity of the
judicial branch and applicants, in an effort to better reflect
the diversity of Californians within that branch with future
appointments.
3. Legal Aid Society suggested amendments
The Legal Aid Society - Employment Law Center writes that "[t]he
integration of the legal profession to include qualified
individuals with disabilities, and the elimination of disability
bias within the profession and at entry points to law school,
bar membership, advancement, and judicial office are key
equality goals [as well as] long-term strategies for bringing
disability awareness and competency of all members to our legal
system, including decision-makers. The provisions of AB 1005
are an important step in furtherance of this effort." At the
same time, however, the Legal Aid Society proposed amendments to
the code section to remove the word "health" and words "health,
physical or mental condition" from specified provisions relating
to the qualifications of an individual, and to add the word
"voluntary" to certain provisions to make clear that individuals
are not required to provide this information.
Staff notes that nothing in the bill, or existing law, suggests
that the applicants, appointees, judges, or justices are
required to respond to these questions relating to demographic
data. The requirement is for the Governor, JNE Commission and
AOC to collect and report that information. As the application
for judicial appointment itself, as discussed in Comment 2
above, makes clear, any response is completely voluntary.
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Support : American Bar Association (support in part, relating to
disability status; neutral with respect to veteran status);
American Civil Liberties Union of California; American
Federation of State, County and Municipal Employees, Council 36;
American Legion - Department of California; AMVETS - Department
of California; California Attorneys for Criminal Justice (CACJ);
California State Commanders Veterans Council; Epilepsy
California; Public Interest Law Project
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
SB 182 (Corbett, Ch. 720, Stats. 2011) See Background.
AB 126 (Davis, Ch. 667, Stats. 2011), among other things,
required the State Bar, in collecting and releasing statewide
demographic data on all judicial applicants, and the
Administrative Office of the Courts (AOC), in collecting and
releasing demographic data on justices and judges, to use
specified ethnic and racial categories.
AB 159 (Jones, Ch. 722, Stats. 2007) See Background.
SB 56 (Dunn, Ch. 390, Stats. 2006) See Background.
Prior Vote :
Assembly Floor (Ayes 74, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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