BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2487 (Feuer)
As Amended May 4, 2010
Hearing Date: June 29, 2010
Fiscal: No
Urgency: No
SK/TW:jd
SUBJECT
Judges: Disqualification
DESCRIPTION
This bill would require that a judge be disqualified when he or
she has received a contribution of more than $1,500 from a party
or counsel in a proceeding and either the contribution was
received in support of the judge's last election, if the last
election was within the prior six years, or the contribution was
received in anticipation of an upcoming election. This bill
would also require the judge to disclose campaign contributions
if those amounts are reportable under the Political Reform Act.
BACKGROUND
In September 2007, the Commission for Impartial Courts
(Commission) was formed for the purpose of providing the
Judicial Council with recommendations on strengthening
California's court system, increasing public trust and
confidence in the judiciary, and ensuring judicial impartiality
and accountability. The Commission submitted a Final Report on
December 15, 2009 (Report), detailing the Commission's findings
and recommendations, which included recommendations for the
mandatory disqualification of judges hearing any matter
involving a party, counsel, party affiliate, or other interested
party who has made a monetary contribution to the judge's
campaign. (See Commission for Impartial Courts, Final Report,
Dec. 15, 2009, pgs. 34-35.)
Shortly after the Commission issued its Final Report, the U.S.
Supreme Court issued its ruling in Caperton v. A.T. Massey Coal
(more)
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Co. (2009) 129 S. Ct. 2252 which directly addressed the issue of
judicial recusal and campaign contributions. Caperton involved
the receipt by a judge of $3 million in campaign contributions
from a party in an action and the resulting Fourteenth Amendment
due process issues for the non-contributing party. A subsequent
U.S. Supreme Court ruling in Citizens United v. Federal Election
Commission (2010) 130 S. Ct. 876 held that the First Amendment
prohibits limits on independent expenditure campaign
contributions by corporations, including contributions made in
judicial campaigns. Under existing California law, judicial
officers are required to recuse themselves if they have a
financial interest in a party or a proceeding, but they are not
expressly required to recuse themselves after receiving campaign
contributions from an interested party to an action.
This bill would require that a judge be disqualified when he or
she has received a contribution of more than $1,500 from a party
or counsel in the proceeding and either the contribution was
received in support of the judge's last election, if the last
election was within the prior six years, or the contribution was
received in anticipation of an upcoming election. This bill
would also require the judge to disclose campaign contributions
if those amounts are reportable under the Political Reform Act.
CHANGES TO EXISTING LAW
Existing law provides that a judge shall be disqualified if,
among other things, one or more of the following is true:
1.the judge has personal knowledge of disputed evidentiary facts
concerning the proceeding;
2.the judge served as a lawyer in the proceeding or, in any
other proceeding involving the same issues, he or she served
as a lawyer for a party or gave advice to a party in the
proceeding;
3.the judge has a financial interest in the subject matter in a
proceeding or in a party to the proceeding, including if a
spouse or minor child living in the household has a financial
interest or the judge or his or her spouse is a fiduciary who
has a financial interest;
4.for any reason, the judge believes his or her recusal would
further the interests of justice;
5.for any reason, the judge believes there is a substantial
doubt as to his or her capacity to be impartial;
6.for any reason, a person aware of the facts might reasonably
entertain a doubt that the judge would be able to be
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impartial; and
7.the judge has a current arrangement regarding prospective
employment or other compensated service as a dispute
resolution neutral or is participating in, or has participated
in within the last two years, such discussions, as specified.
(Code Civ. Proc. Sec. 170.1.)
Existing law defines "financial interest" to mean ownership of
more than a one percent legal or equitable interest in a party,
or a legal or equitable interest in a party of a fair market
value in excess of one thousand five hundred dollars ($1,500),
except as specified.
Existing law provides that if a judge disqualifies himself or
herself, the judge must notify the presiding judge of the court
and may not participate further in the proceeding, unless the
parties waive his or her disqualification. Existing law
provides that a judge who disqualifies himself or herself may
ask the parties and their attorneys, after disclosing the basis
for the disqualification on the record, to waive the
disqualification except if the judge has a personal bias or
prejudice concerning a party or the judge served as an attorney
in the matter, or the judge has been a material witness
concerning that matter. (Code Civ. Proc. Sec. 170.3.)
Existing law provides that a judge may not try a civil or
criminal action when it is established that the judge is
prejudiced against a party or attorney or the interest of a
party or attorney appearing in the action or proceeding.
Existing law permits a party or attorney to establish this
prejudice, within a specified timeframe, by an oral or written
motion without notice supported by affidavit or declaration
under penalty of perjury or an oral statement under oath that
the judge is prejudiced so that the party or attorney cannot or
believes he or she cannot have a fair and impartial trial or
hearing before the judge. A party is limited to one such
peremptory challenge, except as specified. (Code Civ. Proc.
Sec. 170.6.)
Existing Canons of Judicial Conduct require that in all trial
court proceedings, a judge shall disclose on the record
information that is reasonably relevant to the question of
disqualification under Code of Civil Procedure section 170.1,
even if the judge believes there is no actual basis for
disqualification. (California Code of Judicial Ethics, Canon
3E(2).)
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This bill would require that a judge be disqualified when he or
she has received a contribution of more than $1,500 from a party
or counsel in the proceeding and either of the following
applies: (1) the contribution was received in support of the
judge's last election, if the last election was within the prior
six years, or (2) the contribution was received in anticipation
of an upcoming election.
This bill would provide that a judge shall be disqualified based
on a contribution of a lesser amount if, for any reason, the
judge believes his or her recusal would further the interests of
justice, the judge believes there is a substantial doubt as to
his or her capacity to be impartial, or a person aware of the
facts might reasonably entertain a doubt that the judge would be
able to be impartial.
This bill would provide that this disqualification may be waived
by the party that did not make the contribution.
This bill would require a judge to disclose campaign
contributions from a party or counsel in a matter that is before
the court if those amounts are reportable under the Political
Reform Act of 1974, even if the amount would not require
disqualification under the bill. This bill would provide that
the manner of disclosure shall be the same as that provided in
Canon 3E of the Code of Judicial Ethics.
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COMMENT
1. Stated need for the bill
The author writes:
This bill seeks to ensure both the actuality and appearance of
judicial impartiality. In recent years, judicial elections
have become increasingly expensive and partisan, often
requiring judges to spend considerable time raising money in
contested elections. The most egregious example of this can
be seen in Caperton v. Massey (2009) in which a judge refused
to disqualify himself even though he had received $3 [million]
in campaign contributions from one of the parties, the Massey
Coal Company. Many commentators, including former US Supreme
Court Justice Sandra Day O'Connor, believe that the recent US
Supreme Court opinion in Citizens United v. FEC (2010) will
increase the amount of money spent in all elections, including
judicial elections.
While large campaign contributions in elections of legislative
and executive offices create their own problems, expenditures
in judicial elections are even more problematic in that they
undermine perceptions of judicial impartiality and erode
public trust in the fairness of judicial decisions. This bill
seeks to preserve both the actuality and, as importantly, the
appearance of judicial impartiality by requiring judges to
disqualify themselves if they have received substantial
campaign contributions from a party or counsel appearing
before them, in the same manner that they must already
disqualify themselves when they have a financial interest in a
party or the subject matter of the case.
2. Elected judicial officers: due process clause of the
Fourteenth Amendment
This bill would require a judge to recuse himself or herself
when he or she has received a campaign contribution of $1,500 or
more from a party or counsel to an action. As discussed in the
U.S. Supreme Court case of Caperton v. A.T. Massey Coal Co.
(2009) 129 S. Ct. 2252, a judge's receipt of campaign
contributions from a party in an action may present Fourteenth
Amendment due process issues for the non-contributing party. In
Caperton, a judge received $3 million in campaign contributions
from a party in an action but refused to recuse himself.
Caperton demonstrated that judicial interest in a particular
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outcome is not premised on a showing of actual bias for or
against a party to the action. Instead, the court noted that
"there are objective standards that require recusal when 'the
probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally tolerable.'"
In that event, due process requires recusal. (Id. at 2257,
citations omitted.) The proper determination of whether a judge
should be recused after receiving a campaign contribution rests
on whether "'under a realistic appraisal of psychological
tendencies and human weakness,' the interest 'poses such a risk
of actual bias or prejudgment that the practice must be
forbidden if the guarantee of due process is to be adequately
implemented.'" (Id. at 2263 citing Withrow v. Larkin (1975) 421
U.S. 35, 47.) The court also held that codes of conduct enacted
by each state "serve to maintain the integrity of the judiciary
and the rule of law," which is a vital state interest. (Id. at
2266.) The court went on to hold that "States may choose to
adopt recusal standards more rigorous than due process
requires." (Id. at 2267.)
Notably, the Caperton court discussed the merits of the West
Virginia Code of Judicial Conduct which requires a judge to
"disqualify himself or herself in a proceeding in which the
judge's impartiality might reasonably be questioned." (Id. at
2266.) This language is similar to that found in this bill
which would require judicial recusal for campaign receipts in
amounts less than $1,500 if, for any reason, the judge believes
his or her recusal would further the interests of justice, the
judge believes there is a substantial doubt as to his or her
capacity to be impartial, or a person aware of the facts might
reasonably entertain a doubt that the judge would be able to be
impartial. The U.S. Supreme Court has upheld these standards
regarding the recusal of elected judicial officers as proper and
necessary for due process of litigating parties.
3. Corporate campaign contributions to judicial elections
This bill seeks to regulate elected judicial officers by
requiring recusal in cases in which the judicial officer
receives campaign contributions from parties or attorneys to the
action. This is a particularly critical issue in light of the
U.S. Supreme Court's ruling in Citizens United v. Federal
Election Commission (2010) 130 S. Ct. 876. In Citizens United,
the court addressed a provision of federal law which banned
corporate independent expenditures for electioneering
communications. The court held that this statute was an
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unconstitutional ban on free speech. (Id. at 898.)
Accordingly, corporations are now free to spend unlimited
amounts of money investing in campaigns, including judicial
campaigns. Retired U.S. Supreme Court Justice Sandra Day
O'Connor has expressed concern about the Citizens United
decision, noting in a New York Times article:
"Judicial elections are just difficult to justify in a
constitutional democracy in which even the majority is bound
by the law's restraints," . . . She added that [Citizen's
United] was likely to create "an increasing problem for
maintaining an independent judiciary. In invalidating some of
the existing checks on campaign spending," Justice O'Connor
said, "the majority in Citizens United has signaled that the
problem of campaign contributions in judicial elections might
get considerably worse and quite soon." ("Former Justice
O'Connor Sees Ill in Election Finance Ruling," New York Times,
January 26, 2010.)
The Commission for Impartial Courts' Final Report contained a
number of recommendations, including proposed mandatory
disclosure and disqualification requirements similar to those
contained in this bill. The Report notes that "[i]n many
states, courts increasingly had come under attack from partisan
and special interests seeking to influence judicial
decisionmaking, and judicial elections were becoming more like
elections for political office: expensive, negative, and overly
politicized. These kinds of national developments could not be
ignored - the question was not if these trends would spread to
California, but when." (Commission for Impartial Courts, Final
Report, Dec. 15, 2009, pg. 1.)
To counter the potentially negative effects of unlimited
corporation campaign contributions, other states have begun
enacting laws requiring disclosure and recusal of elected
judicial officers. This bill would provide California with a
means of protecting its judicial system in order to maintain
fairness and justice to California litigants.
4. Mandatory disqualification
This bill would require a judge to recuse himself or herself
when he or she has received a campaign contribution of $1,500 or
more from a party or counsel to an action. This provision is
based on Recommendation 30 of the Commission for Impartial
Courts' Final Report. Under existing law, a judge must recuse
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himself or herself in various circumstances, including if the
judge has personal knowledge of disputed evidentiary facts
concerning the proceeding or if, for any reason, the judge
believes his or her recusal would further the interests of
justice, the judge believes there is a substantial doubt as to
his or her capacity to be impartial, or a person aware of the
facts might reasonably entertain a doubt that the judge would be
able to be impartial.
A judge must also recuse himself or herself if he or she has a
financial interest in the subject matter of a proceeding or in a
party to the proceeding, including if a spouse or minor child
living in the household has a financial interest or the judge or
his or her spouse is a fiduciary who has a financial interest.
Under existing law, "financial interest" is defined to mean
ownership of more than a one percent legal or equitable interest
in a party, or a legal or equitable interest in a party of a
fair market value in excess of one thousand five hundred dollars
($1,500), except as specified. The author points out, however,
that "financial interest" is not defined in a way that would
include a campaign contribution by a party or a lawyer. This
bill would address that situation by requiring a judge to recuse
himself or herself in instances where he or she has received a
campaign contribution in excess of $1,500 from a party or lawyer
in the proceeding before the court.
In that instance, the procedure by which a judge must disqualify
himself or herself would be the same as under existing law for
other mandatory recusals. Under existing law, if a judge
disqualifies himself or herself, the judge must notify the
presiding judge of the court and may not participate further in
the proceeding, unless the parties waive his or her
disqualification. Existing law, Civil Code Section 170.3(b),
provides a number of additional safeguards when a judge
disqualifies himself or herself and a waiver of that
disqualification is at issue. Those include:
1.that a judge who disqualifies himself or herself may ask the
parties and their attorneys, after disclosing the basis for
the disqualification on the record, to waive the
disqualification;
2.there shall be no waiver if the basis of the waiver is because
the judge has a personal bias or prejudice concerning a party
or the judge served as an attorney in the matter, or the judge
has been a material witness concerning that matter;
3.a judge may also not seek to induce a waiver and also must
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avoid any effort to determine which lawyers or parties favored
or opposed a waiver of disqualification; and
4.if grounds for disqualification are first learned of or arise
after the judge has made one or more rulings in a proceeding,
but before the judge has completed judicial action in a
proceeding, the judge shall disqualify himself or herself,
unless disqualification is waived, but in the absence of good
cause the rulings he or she has made up to that time shall not
be set aside by the judge who replaces the disqualified judge.
(Code Civ. Proc. Sec. 170.3.)
This bill would provide that the disqualification mandated under
the bill may be waived by the party that did not make the
contribution. As a result, it is important to ensure that the
waiver provisions under this bill are consistent with the waiver
provisions under existing law, as described above. In order to
achieve this, the author has agreed to the following amendment:
Suggested amendment:
On page 5, line 14, delete "The" and insert "Notwithstanding
Section 170.3(b)(1), the"
On page 5, line 15, after "contribution" insert "unless there
are other circumstances that would prohibit a waiver pursuant
to Section 170.3(b)(2)."
5. Disclosure requirements
Under the Political Reform Act, judicial candidates must file
campaign disclosure statements disclosing any contribution of
$100 or more. The author points out that, unlike other
candidates to elective office, judicial candidates are not
subject to any campaign contribution limits or disclosure
requirements alerting parties or counsel to contributions made
to the judge by other parties or counsel in the case. This bill
would address this situation by requiring that the judge
disclose whether any party or counsel had made a campaign
contribution reportable under the Political Reform Act of 1974.
The bill would provide that the manner of disclosure shall be
the same as that provided in Canon 3E of the Code of Judicial
Ethics. This provision is based on Recommendation 29 of the
Commission for Impartial Courts' Final Report, which provided
for mandatory disclosure.
The bill would provide that the manner of disclosure is the same
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as that provided in the California Code of Judicial Ethics,
Canon 3E, which requires, in all trial court proceedings, that a
judge disclose on the record information that is reasonably
relevant to the question of disqualification under Code of Civil
Procedure Section 170.1, even if the judge believes there is no
actual basis for disqualification. As a result, under this
bill, the disclosure of campaign contributions would be made to
the parties and lawyers involved in the matter.
6. Judicial Council: support if amended position
This bill would require judicial recusal in an action if the
judicial officer received $1,500 or more in campaign
contributions from a party or attorney if the contribution was
received in anticipation of an upcoming election or was received
in support of the judicial officer's last election, if the last
election was within six years. The Judicial Council, which
supports this bill if amended, "believes that six years is
unnecessarily long for a mandatory disqualification, and
recommends two years as proposed by the [Commission for
Impartial Courts]. The commission considered several
alternatives, including the entire election cycle, and
ultimately agreed that two years is reasonable given '. . . the
length of time it takes for matters to move through the courts
and the logistical burden if judges were subject to the
obligation for too long a period of time.' Furthermore,
requiring disqualification for the entirety of the judge's term
might invite parties to manipulate the requirements to their
advantage. For example, a lawyer might choose to contribute
more than $1,500 to a disliked judge's campaign for the purpose
of ensuring that the judge would be barred from hearing any case
involving that party. While the May 4 amendment to the bill
allowing the non-contributing party to waive disqualification
goes a long way to mitigate this concern, it does not address
the issue completely."
The author argues against the Judicial Council's proposed
two-year amendment because "it makes more sense for the
requirement to run for the entire six-year term, since there is
no reason to believe that a judge who is potentially influenced
by a campaign contribution at two years after the contribution
would still be influenced at three years. Since there is no
non-arbitrary period, the logical solution is [to] make the
requirement for the term."
7. Technical amendments
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In order to maintain internal consistency with the rest of Code
of Civil Procedure Section 170.1, the following amendments are
needed:
On page 4, line 38, delete "counsel" and insert "lawyer"
On page 4, line 39, delete "a matter that is before the court"
and insert "the proceeding"
On page 5, line 9, delete "counsel" and insert "lawyer"
Support : Judicial Council (if amended)
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 71, Noes 0)
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