BILL ANALYSIS �
SB 182
Page 1
Date of Hearing: June 21, 2011
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 182 (Corbett) - As Amended: April 12, 2011
SENATE VOTE : 23-14
SUBJECT : judiciary: demographic data
KEY ISSUE : should THE LEgislature require the Judicial
Nominations of the State Bar (JNE) commission, governor's office
and the administrative office of the courts (AOC) TO include
demographic data regarding sexual orientation and gender
identification for judges, justices, nominees and appointees in
its annual report on the demographics of the california
judiciary?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill would add gender identification and sexual orientation
to the list of voluntary survey questions to be asked of
judicial nominees, applicants, appointees, justices and judges
in California as a part of the annual release of demographic
data regarding the demographic composition of California courts.
The data is compiled and released by the Governor, the
Commission on Judicial Nominations of the State Bar (JNE) and
the Administrative Office of the Court (AOC). Currently, the
survey asks a respondent's race, gender and ethnicity. The
bill's supporters believe adding gender identification and
sexual orientation to the list of survey questions will increase
the understanding of the demographic composition of the courts
and permit Californians to see if the diversity of the bench
reflects the broad diversity of the citizens of the state. The
bill is supported by numerous LGBT and civil rights groups and
is opposed by Capitol Resource Family Impact.
SUMMARY : Seeks to add demographic data on gender identification
and sexual orientation to the list of information collected
annually on judicial nominees, applicants, appointees, judges
and justices. Specifically, this bill :
1)Adds gender identity and sexual orientation to the list of
self-reported demographic data required to be collected and
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released by the governor, the Judicial Nominations of the
State Bar (JNE) Commission, and the Administrative Office of
the Courts (AOC). As under existing law, providing the
specified information would be strictly voluntary, and any
release of the data must be in the form of aggregated
statistical data and cannot identify any individual applicant,
appointee, justice, or judge.
2)Specifies 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 then becomes responsible for releasing that provided
data as well as any demographic data collected by the incoming
governor, if any, prior to March 1.
EXISTING LAW :
1)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 (the JNE Commission) for evaluation of their
judicial qualifications. (Gov. Code Sec. 12011.5(a).)
2)Requires that on or after March 1 every year the governor
shall collect and release the following information on an
aggregated statistical basis:
a) Demographic data provided by all judicial applicants
(including those who have and have not been submitted to
the JNE Commission) relative to ethnicity, race, and
gender.
b) Demographic data relative to ethnicity, race, and
gender, as provided by all judicial appointees or nominees.
(Gov. Code Sec. 12011.5(n)(1)(A).)
3)Requires that on or after March 1 every year 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,
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and areas of legal practice and employment.
b) A statewide summary of recommendations by ethnicity,
race, and gender and areas of legal practice and
employment. (Gov. Code Sec. 12011.5(n)(1)(A).)
4)Requires that on or after March 1 every year 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).)
5)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).)
6)Specifies that all communications with the governor or his or
her authorized agents or employees 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).)
COMMENTS : This bill would add gender identity and sexual
orientation to the list of demographic data annually collected
on California's judiciary. 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 Americans, 7.5% Latinos, 73.6% Whites,
3.7% of more than one race, while 3.7% persons did not
disclose their race/ethnicity.
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Because 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 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.
The collection of gender identity and sexual orientation of
judicial candidates, judges and justices supplements existing
laws mandating demographic surveys of the state judiciary:
Present law provides for the voluntary disclosure of demographic
data regarding ethnicity, race and gender from all judicial
applicants, appointees, nominees, justices and judges. Any
applicant, appointee, nominee, judge or justice who wishes to
opt out of this disclosure is permitted to do so. The
"Application for Appointment as Judge of the Superior Court"
asks an applicant to choose from numerous ethnic backgrounds in
order to build a picture of the backgrounds of judicial
applicants. This bill would create similar questions
paralleling the existing demographic question focused on
applicants, judges, appointees, nominees and justice's gender
identity and sexual orientation. California possess a sizable
LGBT population and the bill's supporters hope that this
information will shed more light on the sexual orientation of
the state's judiciary, especially as it compares to the
demographic make-up of the state as a whole.
Privacy interests are protected under this bill: Given the
sensitive and personal nature of one's gender identity and
sexual orientation, some judges and nominees understandably may
be uncomfortable disclosing their sexual identities. To
alleviate this concern, all demographic information in this area
of the law is released on an aggregate basis with no information
identifying any individual judge, justice, applicant, nominee or
appointee. Furthermore, the entire survey is voluntary and any
judge, justice, applicant, appointee or nominee can refuse to
respond to any of the survey's questions they feel uncomfortable
answering. The results of the survey are for demographic
understanding only.
Evidence suggests judge and justice's comfort with the entire
survey may be increasing; the percentage of nonresponses has
decreased from 9.9 percent to 3.5 percent since 2007. Similar
data is not known for judicial applicants and nominees as the
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JNE Commission does not disclose non-response data in its
report. In order to fully appreciate and understand the entire
data set, the rate of non-responses is helpful. Accordingly,
the bill was amended in the Senate to include the information
regarding the frequency of non-responses in all survey results.
ARGUMENTS IN SUPPORT : The Lambda Legal Defense and Education
Fund writes in support 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."
Arguments IN Opposition : The Capitol Resource Family Impact
argues "�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 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."
Pending Legislation : AB 126 (Davis), which passed this
Committee, requires that all demographic information provided by
the Governor and JNE Commission reflect the prior calendar year.
The bill mandates two hours of training for all JNE Commission
members on bias and fairness in the judicial process. Finally,
AB 126 requires 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. Pending a hearing in the Senate Judiciary
Committee.
REGISTERED SUPPORT / OPPOSITION :
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Support:
Equality California
Bay Area Lawyers for Individual Freedom (BALIF)
California Communities United Institute
California Judges Association
California Employment Lawyers Association
California National Organization for Women (CA NOW)
California Police Chiefs' Association
California Women Lawyers
Lambda Legal
National Center for Lesbian Rights
Sacramento Lawyers for the Equality of Gays and Lesbians
Honorable Betty Yee, Board of Equalization Member, First
District
Opposition:
Capitol Resource Family Impact
Analysis Prepared by : Drew Liebert & Nick Liedtke / JUD. /
(916) 319-2334