BILL ANALYSIS �
AB 126
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Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 126 (Davis) - As Amended: April 4, 2011
SUBJECT : JUDICIAL APPOINTMENTS: PUBLICATION OF JUDICIAL
SELECTION ADVISORS
KEY ISSUE : SHOULD CALIFORNIA GOVERNORS BE REQUIRED TO MAKE
PUBLIC THE IDENTITIES OF INDIVIDUALS (OTHER THAN THEIR
EMPLOYEES) WHO RECEIVE JUDICIAL APPLICATION MATERIALS TO HELP
THE GOVERNOR EVALUATE THE QUALIFICATIONS OF JUDICIAL CANDIDATES?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill is similar to the author's AB 2095 that was passed by
this Committee and the Legislature in 2008. That measure was
vetoed by then-Governor Schwarzenegger, who 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.
According to the author, this bill seeks to address what he
states is an historic lack of transparency in California's
judicial selection and evaluation process. Amongst other
things, the bill would require the Governor to collect and
release, on a continuous basis by posting on his or her official
Internet Web site, the names of all persons (other than
gubernatorial employees) to whom the Governor or the Governor's
representatives have provided judicial application materials
about candidates for judicial office. By requiring the current
and future governors to make public the identities of
participants in any such judicial candidate reviews, this bill
will, the author hopes, help strengthen public confidence in the
judicial appointment process. Furthermore, the author contends
the bill will hopefully help efforts to address the continuing
lack of sufficient ethnic, racial and gender diversity in the
state's judicial branch by encouraging greater diversity, where
needed, amongst those who advise the Governor about judicial
candidate qualifications.
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There are of course, as then-Governor Schwarzenegger cited in
his veto of the prior similar legislation, legitimate
constitutional issues regarding such legislatively-mandated
openness in the Governor's judicial selection process, e.g.,
whether requiring making public the names of informal
appointments advisors might unduly encroach upon the powers of
governors to consult with whomever they wish when selecting
judges.
The bill is supported by the California State Conference of the
NAACP and there is currently no known opposition to the measure.
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
State Bar responsible for evaluation of judicial candidates
complete a minimum of 2 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 for
collecting annual demographic data, including a requirement
that, with respect to the collection and release of
demographic data, the State Bar and the Administrative Office
of the Courts 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.
EXISTING LAW :
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1)Provides that the Legislature shall prescribe the number of
judges and shall provide for the officers and employees of
each superior court. (California Constitution, Art. VI,
Section 4.)
2)Requires that on or before March 1 of each year, all of the
following shall occur: (a) the Governor shall disclose
aggregate statewide demographic data provided by all judicial
applicants relative to ethnicity and gender; (b) 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 (c) the Administrative
Office of the Courts shall collect and release the demographic
data provided by justices and judges relative to ethnicity and
gender by specific jurisdiction. (Government Code section
12011.5(n).)
COMMENTS : Like AB 2095 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. That measure was
vetoed by then-Governor Schwarzenegger, who 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.
There are of course legitimate constitutional issues (see below)
AB 126
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regarding mandatory openness in any gubernatorial judicial
selection vetting process, i.e., whether requiring the
identities of such potentially volunteer assistants to the
Governor and his or her staff inappropriately encroaches upon
the powers of the current and future governors to consult with
whomever they choose when making their constitutionally-reserved
decisions selecting judges.
AOC Survey Reportedly Demonstrates Bill's Call for Openness of
Judicial Candidate Advisors Appears to Mirror Approach of Most
Surveyed States : In response to AB 159 (Jones) in 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 essentially reportedly make such data
available for public view when requested.
Historic Lack of Diversity in the Judiciary A Difficult Nut to
Crack But Some Progress Has Been Made in Recent Years With the
Encouragement by The Legislature: 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.
Constitutional Issues Triggered by This Legislation; Do
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Governors Have the Right to Keep This Information Private :
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.
Then-Governor Schwarzenegger's Earlier Veto : As noted above, in
September of 2008, then-Governor Schwarzenegger vetoed the prior
version of this bill (AB 2095), stating as follows:
Having a diverse and qualified judiciary that can
effectively serve all Californians is a goal I
continue to work towards. Our hard work is reflected
in the increased number of diverse judicial
applicants. My appointments, of which over 23% to
date are ethnic minorities, exceeds the percentages of
ethnic minority applicants? I receive information from
a myriad of sources, and ? �t]he people this bill
seeks to identify perform an advisory role only and a
final decision about who advances in the process is
exercised exclusively by the Judicial Appointments
Secretary, acting on my behalf. Therefore, any
contrary characterization does a disservice to the
public? �This bill] would impair the availability of
impartial information about prospective judicial
candidates, have a chilling effect upon people willing
to provide candid information, and would subject
individuals to political lobbying from various
sources. Ultimately, this bill would hinder my
ability to most effectively carry out my
constitutionally-mandated duty.
ARGUMENTS IN SUPPORT : 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
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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?
In support, the American Federation of State, County and
Municipal Employees "believe�s] that California's judges should
reflect the diversity of its population, and this bill would
help ensure that applicants of all cultural backgrounds are
fairly treated in the appointment process."
The California Public Defenders Association, also in support,
states that:
The local committees receive the candidates' Personal Data
Questionnaire (PDQ), and these committees begin to look
into the candidate's background. Consequently, these
committees make recommendations to the Governor as to who
should move along further in the process. Although the
Governor is the one empowered to name a candidate to the
bench, the individuals who make those recommendations to
the Governor are the gatekeepers of the candidate pool
itself. These gatekeepers are a key component in the
judicial selection process. Despite being an important
part of the selection process, their identities are not
currently known to the public.
The American Civil Liberties Union argues in support that
"�d]isclosure of the identity of the members on Judicial
Selection Advisory Committees creates greater equity among
applicants. No longer will there be the categories of those who
know the identity of members and those who don't. Instead,
knowing the identities of the screening committee members would
allow all applicants to tailor the applications to address their
audience."
Prior Related Legislation : AB 2095 (Davis) 2008: Similar to
this bill, passed this Committee and the Legislature but
subsequently vetoed by then-Governor Schwarzenegger.
REGISTERED SUPPORT / OPPOSITION :
Support
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California State Conference of the NAACP (sponsor)
ACLU
AFSCME
California Public Defenders Association
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334