BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 126|
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THIRD READING
Bill No: AB 126
Author: Davis (D), et al.
Amended: 8/25/11 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 4-1, 6/14/11
AYES: Evans, Blakeslee, Corbett, Leno
NOES: Harman
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 48-27, 5/23/11 - See last page for vote
SUBJECT : Courts: judicial appointments
SOURCE : Author
DIGEST : This bill requires members of the State Bar's
Commission on Judicial Nominees Evaluation (JNE) to
complete a specified minimum amount of time of training
annually in the areas of fairness and bias in the judicial
appointments process. This bill requires the State Bar, in
collecting and releasing statewide demographic data on all
judicial applicants, and the Administrative Office of the
Courts, in collecting and releasing demographic data on
justices and judges, to use specified ethnic and racial
categories.
Senate Floor Amendments of 8/25/11 (1) revise those
requirements to provide that members of the judicial
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selection committee are encouraged to recommend candidates
from diverse backgrounds and cultures reflecting
California's demographics, (2) revise the training
requirements described above to specify that JNE members
shall complete at least 60 minutes of the training at new
member orientation and, if they serve more than one term,
an additional 60 minutes of that training during their
service, and (3) add chaptering out language to avoid a
conflict with SB 182 (Corbett).
ANALYSIS : Existing law confers the power to appoint
judges upon the Governor. (California Constitution Article
VI, Section 16)
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
(Commission on JNE �JNE Commission]) for evaluation of
their judicial qualifications. (Government Code �GOV]
Section 12011.5(a).) Existing law requires that the JNE
Commission consist of attorney members and public members
and provides that it shall be broadly representative of the
ethnic, gender, and racial diversity of California's
population. (GOV Section 12011.5(b))
Existing law provides that upon receipt from the Governor
of the names of judicial applicants, the JNE Commission
shall confidentially evaluate and determine the
qualifications of each candidate with respect to his/her
ability to discharge judicial duties and, within 90 days,
must report to the Governor its confidential
recommendation. (GOV Section 12011.5(c))
This bill requires the Governor to post on his/her Web site
the names of all persons to whom the Governor or his/her
representatives have provided judicial application
materials for the purpose of determining whether to submit
the candidate's application to the State Bar for
evaluation, or to assist in the decision of whether an
applicant should be appointed as a judge after he/she has
been evaluated by the State Bar. This provision would not
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apply to the Governor's employees, including the Governor's
Legal Affairs Secretary and Judicial Appointments
Secretary.
This bill requires members of the designated agency of the
State Bar responsible for evaluation of judicial candidates
to complete a minimum of two hours 60 minutes of training
in the areas of fairness and bias in the judicial
appointments process on an annual basis at an orientation
for new members, and an additional 60 minutes of that
training during his or her service on that agency if the
member serves more than one term. This bill revises the
provision requiring the Governor, the designated agency,
and the Administrative Office of the Courts (AOC) to
collect and release specified demographic data annually, as
described above, to specifically require that the
information be for the prior calendar year. This bill also
requires, with respect to the collection and release of
demographic data, the State Bar and the AOC to use
specified ethnic and racial categories, as those categories
are defined by the United States Census Bureau for the 2010
Census for reporting purposes.
Existing law requires that on or after March 1 every year,
all of the following shall occur:
1. The Governor shall collect and release the following
information on an aggregated statistical basis: (A)
demographic data provided by all judicial applicants
relative to ethnicity, race, and gender; (B) demographic
data relative to ethnicity, race, and gender, as
provided by all judicial applicants, including both
those whose names have been, and those whose names have
not been, submitted to the JNE Commission for
evaluation; and (C) demographic data relative to
ethnicity, race, and gender, as provided by all judicial
appointees or nominees;
2. The JNE Commission shall collect and release the
following information on an aggregated statistical
basis: (A) statewide demographic data provided by all
judicial applicants reviewed regarding ethnicity, race,
and gender, and areas of legal practice and employment;
and (B) a statewide summary of recommendations by
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ethnicity, race, and gender and areas of legal practice
and employment; and
3. The AOC shall collect and release demographic data
provided by justices and judges relative to ethnicity,
race, and gender by specific jurisdiction. (GOV Section
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 Section 12011.5(n)(3))
Existing law specifies that all communications with the
Governor or his/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 Section 12011.5(f))
This bill requires the State Bar, in collecting and
releasing statewide demographic data on all judicial
applicants, and the AOC, in collecting and releasing
demographic data on justices and judges, to use the
following ethnic and racial categories: American Indian or
Alaska Native, Asian, Black or African American, Hispanic
or Latino, Native Hawaiian or other Pacific Islander,
White, some other race, and more than one race, as those
categories are defined by the U.S. Census Bureau for the
2010 Census.
Members of judicial selection advising committee are
encouraged to recommend candidates from diverse background
and cultures reflecting the demographics of California.
This bill specifies that the reports described above shall
cover the preceding calendar year.
This bill is double jointed with SB 182 (Corbett).
Prior Legislation
AB 2095 (Davis), 2007-08 Session, passed the Senate (22-14)
on
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August 14, 2008, but was vetoed by Governor Schwarzenegger.
In his veto
message, he stated:
". . . I receive information from a myriad of sources,
and the only mandatory gateway to be appointed to the
bench is the evaluation process done by the State Bar's
Commission on Judicial Nominees Evaluation. Potential
candidates are put forward by many organizations or
individuals and are thoroughly vetted before receiving an
appointment. My Judicial Appointments Secretary
corresponds directly with bar associations, other
organizations and individuals when being apprised of a
potentially outstanding candidate. The 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.
"The California Constitution requires me to appoint
individuals to the bench who are equal to the great task
of serving this state. It is a duty I take very
seriously and is why receiving independent, thoughtful
and honest information from numerous sources is crucial
in determining an applicant's ability to perform this
role. Assembly Bill 2095 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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 8/26/11)
American Civil Liberties Union
American Federation of State, County and Municipal
Employees, AFL-CIO
California Communities United Institute
California Public Defenders Association
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California State Conference of the National Association for
the Advancement of Colored People
Charles Houston Bar Association
Congress of Racial Equality of California
Wiley W. Manuel Bar Association of Sacramento County
ARGUMENTS IN SUPPORT : The author writes:
"The state's judicial appointments process uses anonymous
individuals on local committees (Judicial Selection
Advisory Committees) from various regions, who vet
judicial aspirants prior to submitting the applications
to the State Bar's Commission on Judicial Nominees
Evaluation (JNE) for a formal and more open evaluation.
There's no certainty of diversity on these local
committees, and the results of their work leave the
public unsure of fairness. Transparency in this process
will allow for increased fairness and inclusion.
"Due to the wide disparity in sentencing (often depending
on a defendant's ethnicity), it is imperative to consider
diverse backgrounds when determining who should judge
accused citizens. With the anonymity of the current
vetting system, it is impossible to determine the
diversity of the local committees who assist in the
judicial selection process. Our judicial system will
benefit from greater transparency in this area."
Supporter California State Conference of the National
Association for the Advancement of Colored People echoes
this concern, writing that the judicial selection process
"requires increased clarity because currently there is a
lack of diversity among our state's appointed judges. This
has resulted in a stark disparity in sentencing practices
depending on the ethnicity of the defendant. . . . �AB
126] would greatly assist citizens who seek to gather
information on and understanding of the roots to our
judicial diversity problems and our sentencing
disparities."
In further support, the Charles Houston Bar Association and
California Public Defenders Association write:
"The selection of potential judicial candidates to be
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considered by the Governor is the most critical step in
the process. For many decades, Governors have utilized
the local judicial advisory committees to screen out
applicants to the bench. 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. . . . Despite being an important part of the
selection process, their identities are not currently
known to the public."
ASSEMBLY FLOOR : 48-27, 5/23/11
AYES: Alejo, Allen, Ammiano, Atkins, Beall, Block,
Blumenfield, Bonilla, Bradford, Brownley, Buchanan,
Butler, Charles Calderon, Campos, Carter, Cedillo,
Chesbro, Davis, Dickinson, Eng, Feuer, Fong, Fuentes,
Galgiani, Gordon, Hall, Hayashi, Roger Hern�ndez, Hill,
Huber, Hueso, Huffman, Lara, Bonnie Lowenthal, Mendoza,
Mitchell, Monning, Perea, V. Manuel P�rez, Portantino,
Skinner, Solorio, Swanson, Torres, Wieckowski, Williams,
Yamada, John A. P�rez
NOES: Achadjian, Bill Berryhill, Conway, Donnelly,
Fletcher, Beth Gaines, Garrick, Gatto, Grove, Hagman,
Halderman, Harkey, Jeffries, Jones, Knight, Logue,
Mansoor, Miller, Morrell, Nestande, Nielsen, Norby,
Olsen, Silva, Smyth, Valadao, Wagner
NO VOTE RECORDED: Cook, Furutani, Gorell, Ma, Pan
RJG:kc 8/26/11 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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