BILL ANALYSIS �
AB 126
Page 1
ASSEMBLY THIRD READING
AB 126 (Davis)
As Amended May 16, 2011
Majority vote
JUDICIARY 7-2 APPROPRIATIONS 11-5
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|Ayes:|Feuer, Atkins, Dickinson, |Ayes:|Fuentes, Blumenfield, |
| |Huber, Huffman, Monning, | |Bradford, Charles |
| |Wieckowski | |Calderon, Campos, Davis, |
| | | |Hall, Hill, Lara, |
| | | |Mitchell, Solorio |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Wagner, Jones |Nays:|Harkey, Gatto, Nielsen, |
| | | |Norby, Wagner |
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SUMMARY : Seeks to make public the identities of individuals to whom
the Governor or the Governor's representatives have provided
judicial application materials or related documentation about
candidates for judicial office to assist in the vetting process.
Specifically, this bill :
1)Requires the current Governor and future governors to make public
the identities of those persons participating in the selection and
evaluation of judges, exempting from such disclosure all
gubernatorial employees.
2)Requires that each member of the designated agency of the
California State Bar (State Bar) responsible for evaluation of
judicial candidates complete a minimum of two hours each year of
mandatory training in the areas of fairness and bias in the
judicial appointments process.
3)Clarifies existing requirements imposed on the Governor, the Bar,
and the Administrative Office of the Courts (AOC) for collecting
annual demographic data, including a requirement that, with
respect to the collection and release of demographic data, the
State Bar and the AOC use the ethnic and racial categories
designated and used by the United States Census Bureau for the
2010 Census, and each year thereafter for reporting purposes.
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EXISTING LAW requires that on or before March 1 of each year, all of
the following shall occur: 1) the Governor shall disclose
aggregate statewide demographic data provided by all judicial
applicants relative to ethnicity and gender; 2) the designated
agency of the State Bar responsible for evaluating judicial
candidates shall collect and release statewide demographic data
provided by judicial applicants reviewed and a statewide summary of
the recommendations of the designated agency by ethnicity and
gender; and, 3) the AOC shall collect and release the demographic
data provided by justices and judges relative to ethnicity and
gender by specific jurisdiction.
FISCAL EFFECT : According to the Assembly Appropriations Committee,
minor absorbable ongoing costs for the Governor's office to make the
required disclosures on its Web site.
COMMENTS : Like AB 2095 (Davis, et al.) from 2008, which passed in
the Legislature but was subsequently vetoed by then-Governor
Schwarzenegger, this bill seeks to address what the author states is
the historic lack of transparency in some aspects of California's
judicial evaluation process. In his veto message, Governor
Schwarzenegger stated among other things that the measure would
impair the availability of impartial information about prospective
judicial candidates, would have a chilling effect upon people
willing to provide candid information, and would inappropriately
subject such volunteers to political lobbying from various sources.
By requiring the current and future governors to make public the
identities of participants in any such judicial selection process,
this bill will, the author hopes, help strengthen public confidence
in the judicial appointment process. Furthermore, the author
contends, the bill will help efforts to improve ethnic, racial and
gender diversity in the state's judicial branch by encouraging
greater diversity where needed in such applicant advisory processes
through improved transparency about those who assist the Governor
and his or her staff in the process.
In response to AB 159 (Jones), Chapter 722, Statutes of 2007, the
staff of the AOC conducted an informal survey to determine how other
states in the country addressed transparency concerns surrounding
these committees in the judicial selection process. The summary
provided by the AOC reported that of the 30 or so states contacted
by the AOC in 2007 regarding the transparency of their judicial
selection process, at least 24 stated they make such membership
information public. Several other of the 30 states surveyed
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essentially reportedly make such data available for public view when
requested.
In recent years there has been increased attention by the
Legislature 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 N��ez 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. The State Bar, the Governor's office, and
the Judicial Council were 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 some progress has been made on the diversity
front. Unfortunately, with the long history of inadequately diverse
appointments, it has meant that even after a bit more diverse
appointments in recent years, much more work remains to be done.
There are substantial constitutional questions regarding mandatory
openness in the judicial evaluation and appointment process, namely
whether requiring publication of informal advisors to a governor
might be found to unduly encroach upon the powers of the state's
governors to consult with whomever they choose when selecting
judges. It should be anticipated that such concerns may be
litigated in the courts if this legislation is enacted.
This measure is supported by the California State Conference of the
NAACP (NAACP). Reflecting their support for AB 2095 in 2008, the
NAACP stated in part that:
Without transparency to the process of judicial selection and
accountability by those who are given such vital
responsibility, we cannot be sure of fairness and integrity in
the entire criminal justice system? a continued distrust of the
judicial process will continue to prevail in communities of
color without transparency... With anonymity utilized in the
current system, it is impossible to determine the social
representation of these local committees who assist in the
judgeship selection process?
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Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
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