BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 182 (Corbett)
As Amended March 10, 2011
Hearing Date: April 5, 2011
Fiscal: Yes
Urgency: No
SK:rm
FOR VOTE ONLY
SUBJECT
Judiciary: Demographic Data
DESCRIPTION
This bill, sponsored by Equality California, would add gender
identity and sexual orientation to the list of demographic data
provided by judicial applicants, nominees, appointees, justices,
and judges required to be collected and released by the
Governor, the Commission on Judicial Nominees Evaluation (JNE
Commission) of the State Bar, and the Administrative Office of
the Courts (AOC).
BACKGROUND
Under existing law, the Governor, the JNE Commission, and the
AOC must collect and release demographic data relative to
ethnicity, race, and gender provided by judicial applicants,
nominees, appointees, justices, and judges. 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
provisions of law were added in order to better understand the
ethnic and gender diversity, or lack thereof, of the judicial
branch and judicial applicants. (See SB 56 (Dunn, Ch. 390,
Stats. 2006) and AB 159 (Jones, Ch. 722, Stats. 2007).)
Although the self-reporting of demographic data is voluntary,
the information contained in the annual reports has been helpful
to a better understanding of the gender and ethnic make-up of
the judiciary and judicial applicants. A recent Daily Journal
(more)
SB 182 (Corbett)
Page 2 of ?
article indicated that "�t]he percentages of women and minority
judges in California has continued to increase at a slow but
constant pace over the past several years. But diversity on the
bench doesn't match that of judicial candidates . . . "
("Judicial Diversity Slowly Rises," Daily Journal, March 1,
2011.)
The AOC's most recent report indicated that in 2010 women made
up 30.8 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 8.2 percent from 6.3 percent in 2007; Asian judges
increased to 5.4 percent from 4.4 percent; and Black or
African-American judges increased to 5.6 percent from 4.4
percent. With respect to judicial applicants and appointments,
the 2010 report from Governor Schwarzenegger indicated that
Hispanics made up 7.6 percent of all judicial applicants, Asians
7.1 percent, and Blacks or African-Americans 7.6 percent. Of
judges appointed by Schwarzenegger in 2010, 13 percent were
Hispanic, 8 percent Asian, and 11.6 percent Black or
African-American.
As a comparison, however, recently released numbers 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.
(http://2010. census.gov/2010census/data/, visited March 19,
2011.) With respect to this bill, data provided by the author's
office indicate 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.)
This bill is intended to enhance a similar understanding of how
the lesbian, gay, bisexual, and transgender community is
represented in the judiciary by providing that demographic data
relative to gender identity and sexual orientation also be
collected on a voluntary basis and reported on an aggregated
statistical basis.
CHANGES TO EXISTING LAW
Existing law provides that in the event of a vacancy in a
judicial office to be filled by appointment of the Governor, or
SB 182 (Corbett)
Page 3 of ?
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 JNE Commission) for evaluation of their judicial
qualifications. (Gov. Code Sec. 12011.5(a).)
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:
1. Demographic data provided by all judicial applicants
relative to ethnicity, race, and gender;
1. 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
1. 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:
2. Statewide demographic data provided by all judicial
applicants reviewed regarding ethnicity, race, and gender,
and areas of legal practice and employment.
2. A statewide summary of recommendations by ethnicity,
race, and gender and areas of legal practice and
employment.
3.The Administrative Office of the Courts shall collect and
release demographic data provided by justices and judges
relative to ethnicity, race, and gender by specific
jurisdiction. (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).)
SB 182 (Corbett)
Page 4 of ?
This bill would add gender identity and sexual orientation to
the list of self-reported demographic data required to be
collected and released by the Governor, the JNE Commission, and
the Administrative Office of the Courts. 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 also specify that in the year following a
general or recall election in which a new Governor will take
office prior to March 1, the departing Governor must provide to
the incoming Governor all of the demographic data collected for
the previous year. This bill would require that the incoming
Governor is then responsible for releasing that provided data as
well as any demographic data collected by the incoming Governor,
if any, prior to March 1.
COMMENT
1. Stated need for the bill
The author writes:
This bill addresses a deficiency in current law by including
sexual orientation, gender identity, and gender expression as
a part of the collection of the demographics collected. In
the same vein as then-Speaker Nunez's concern �for] a lack of
diversity on the courts with regard to gender and ethnicity,
the collection of this self-reported information will help
identify diversity of sexual orientation or gender identity
and gender expression, or lack thereof.
The California Judiciary suffers from a substantial lack of
diversity. In 2009 women represented just 34 percent of
applicants and only 28 percent of the total number of judges
appointed by the Governor. The Administrative Office of the
Courts reported that as of December 2009 the judiciary was
composed of 5% Asian and Pacific Islanders, 5.4% Black/African
SB 182 (Corbett)
Page 5 of ?
Americans, 7.5% Latinos, 73.6% Whites, 3.7% of more than one
race, while 3.7% persons did not disclose their
race/ethnicity.
Sponsor Equality California notes that "�b]ecause these reports
do not consider gender identity, gender expression, or sexual
orientation, there is currently no way of knowing how the
lesbian, gay, bisexual, and transgender (LGBT) community is
being represented in the judiciary. While LGBT people represent
a sizable and important part of the state, their representation
in the judicial branch of government is virtually unknown."
Lambda Legal Defense and Education Fund supports the bill and
writes that "? a judiciary that accurately reflects the
diversity of its constituents boosts the public's confidence in
the legitimacy of the courts. . . . �b]y not providing LGBT
individuals with the opportunity to disclose this information
�as the bill would provide], the law fails to fully capture the
diversity of current and future applicants and appointees. The
inclusion of these questions is particularly timely as more and
more 'out' LGBT judges are filling seats on both state and
federal benches."
2. Bill would provide for collection and release of self-reported
demographic data concerning gender identity and sexual
orientation, consistent with existing provisions of law
This bill would add gender identity and sexual orientation 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 JNE Commission, and the AOC.
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: "To assist the Governor's Office with
its reporting obligations �citation omitted], applicants are
asked to voluntarily provide their gender and race/ethnicity.
Use the categories below to choose the one with which you most
closely identify." The scroll down menu 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
SB 182 (Corbett)
Page 6 of ?
"Other."
Like existing law, this bill's addition of gender identity and
sexual orientation to the list of demographic data provided by
judicial applicants, nominees, appointees, justices, and judges
would be voluntary. With respect to judges and justices, the
percentage of respondents who declined to disclose their race
and 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 declined to indicate their race and
ethnicity. In 2010, that number had declined to 3.5 percent.
The 2010 reports submitted by the Governor and the JNE
Commission do not indicate the percentage of judicial applicants
or appointees who similarly declined to provide demographic
data. Because it is helpful to know the percentage of
respondents who declined to respond in order to better
understand the sample size, the following amendment is
suggested:
Suggested amendment
On page 6, between lines 31 and 32, insert "(4) Any
demographic data disclosed or released pursuant to this
subdivision shall also indicate the percentage of respondents
who declined to respond."
3. Demographic data concerning gender identity and sexual
orientation
This bill would add gender identity and sexual orientation to
the list of demographic data asked to be provided by judicial
applicants, nominees, appointees, justices and judges. As noted
above, the current application for appointment as a Superior
Court judge asks applicants to voluntarily choose the
race/ethnicity "with which you most closely identify."
It is anticipated that respondents would similarly be asked to
choose the gender identity and sexual orientation with which
they most closely identify. On this point, the author writes,
"We point to different studies that have examined how to ask
questions about sexual orientation on surveys. Cognizant that
different surveys require different methods of asking the
questions, the Williams Institute from UCLA's School of Law
released a report in 2009 that examined this issue and provides
examples. (See "Best Practices for Asking Questions about Sexual
Orientation on Surveys," The Williams Institute, UCLA School of
SB 182 (Corbett)
Page 7 of ?
Law, November 2009. Also, see "Recommendations for Inclusive
Data Collection of Trans People in HIV Prevention, Care &
Services," Center of Excellence for Transgender HIV Protection,
UCSF, 2009.)"
4. Individual demographic data collected remains confidential;
disclosure permitted only on an aggregated statistical basis
Under existing law, 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. In addition, 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
officers are "absolutely privileged from disclosure and
confidential." Similarly, a judge or justice's personal
demographic information would be exempt from disclosure under
Rule 10.500 of the California Rules of Court which exempts
judicial administrative records that are otherwise prohibited
from disclosure by statute.
5. Release of information following a gubernatorial transition
This bill would specify that in the year following a general or
recall election in which a new Governor will take office prior
to March 1, the departing Governor must provide to the incoming
Governor all of the demographic data collected for the previous
year. Under the bill, the incoming Governor would then be
responsible for releasing that provided data as well as any
demographic data collected by the incoming Governor, if any,
prior to March 1.
The author indicates that this provision is intended to ensure
that "during the transition between an outgoing Governor and an
incoming Governor, the data for judicial applicants and
appointees will still be released."
6. Opposition arguments
Capital Resource Family Impact opposes this bill, writing "�n]ot
only does this bill pry into an individual's private life by
asking him or her whether they are heterosexual, homosexual, or
bisexual but the government has no business collecting data
pertaining to a person's attraction to the same sex.
Furthermore, a judicial appointment is a serious matter and
SB 182 (Corbett)
Page 8 of ?
should therefore not be used as a means to fill a quota. Judges
are and ought to continue to be considered for appointment when
they have shown they are capable of impartial rulings, have a
long history that qualifies them to be appointed, and will
fairly look and listen to the arguments presented before them
while at a hearing."
Support : California National Organization for Women (CA NOW);
Lambda Legal Defense and Education Fund
Opposition : Capital Resource Family Impact
HISTORY
Source : Equality California
Related Pending Legislation : AB 126 (Davis) would specifically
require that the demographic data released by the Governor, the
JNE Commission, and the AOC be data for the prior calendar year.
The bill would require each member of the JNE Commission to
annually complete a minimum of two hours of training in the
areas of fairness and bias in the judicial appointments process.
And, AB 126 would also require the Governor to post on his or
her Web site the names of those individuals who assist him or
her in the decision whether to submit a candidate's application
to the JNE Commission for evaluation or whether the applicant
should be appointed after he or she has been evaluated by the
JNE Commission. This bill has been referred to the Assembly
Judiciary Committee.
Prior Legislation : See Background.
**************