BILL ANALYSIS
AB 2487
Page 1
Date of Hearing: April 27, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2487 (Feuer) - As Amended: April 20, 2010
As Proposed to be Amended
SUBJECT : Judges: Disqualification AND DISCLOSURE RULES TO
MAXIMIZE THE APPEARANCE OF IMPARTIALITY
KEY ISSUES :
1)Should a Superior Court Judge be disqualified from hearing a
matter if the judge has received a campaign contribution in
excess of $1500 from a party or counsel in the matter?
2)Should a Superior Court Judge who receives a campaign
contribution of less than $1500 be required to disclose that
contribution to the other parties and counsel in the matter?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
Existing law requires a judge to recuse him- or herself if he or
she has a financial interest in a party or in the subject matter
of the action before the court, if the amount of the financial
interest is in excess of $1500. However currently "financial
interest" is not defined to include campaign contributions.
This non-controversial bill would logically require a superior
court judge to disqualify him- or herself from hearing any
matter in which a party or counsel to the matter before the
court has given the judge a campaign contribution in excess of
$1500. If a judge has received a campaign contribution of less
than $1500 from a party or counsel in a case before him or her,
then the judge would be required to disclose that fact on the
record as well as to the other parties and counsel. The genesis
of this bill idea comes, in part, from the December 2009 Final
Report of the Commission for Impartial Courts (CIC), a
commission created through the efforts of the Judicial Council
and Chief Justice Ronald George and chaired by Associate Justice
Ming Chin. The CIC's Final Report made 71 recommendations (only
a minority of which required legislation) on how to improve
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judicial quality, impartiality, and accountability in
California. This bill embodies two of those recommendations:
mandatory disclosure and disqualification for certain campaign
contributions. The author, like the CIC, believes that
requiring disclosure and disqualification in such situations
will serve the state's compelling interest in maintaining actual
and perceived judicial impartiality. For reasons discussed
below, the author appropriately plans to take an amendment in
this Committee that will allow the non-campaign contributing
party to waive the disqualification requirement so the case may
go forward with that particular superior court judge. The bill
summary below reflects that amendment. There is no known
opposition to the bill.
SUMMARY : Requires the disqualification of a superior court
judge who has received a campaign contribution in excess of
$1500 from a party or counsel in a matter that is before the
court and requires the disclosure of lesser amounts, as
specified. Specifically, this bill :
1)Provides that a judge shall be disqualified if he or she has
received a contribution in excess of $1500 from any party or
counsel in a matter that is before the court, and either of
the following apply:
a) The contribution was received in support of the judge's
last election, if the last election was within the last six
years;
b) The contribution was received in anticipation of an
upcoming election.
1)Provides that a judge shall be disqualified when receiving
campaign contributions of lesser amounts if the judge believes
the contribution would compromise his or her impartiality or
if a person aware of the contribution might reasonably
entertain a doubt that the judge could be impartial.
2)Requires a judge to disclose, as specified, a campaign
contribution from a party or counsel with a matter before the
court, even if the amount is not sufficient to require
disqualification.
3)Provides that the disqualification required under this bill
may be waived by the non-contributing party.
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EXISTING LAW :
1)Provides that a superior court judge shall be disqualified if
one or more of the following is true:
a) The judge has personal knowledge of disputed evidentiary
facts concerning the proceeding.
b) The judge served as a lawyer in the proceedings or gave
advice to a party in the present proceeding upon a matter
involved in the action or proceeding.
c) The judge, or a spouse or a minor child living within
the same household, has a financial interest in the subject
matter in a proceeding or in a party to the proceeding.
d) The judge, or a spouse of a judge, or a person within
the third degree of relationship, as defined, is a party to
the proceeding or an officer, director, or trustee of a
party.
e) A lawyer or a spouse of a lawyer in the proceeding is
the spouse, former spouse, child, sibling, or parent of the
judge or the judge's spouse, or if such a person is
associated in the private practice of law with a lawyer in
the proceeding.
f) For any reason the judge believes would compromise his
or her impartiality or if a person aware of the facts might
reasonably entertain a doubt that the judge would be able
to be impartial.
g) The judge has a current arrangement concerning
prospective employment or compensated service, or within
the past two years has participated in discussions about
prospective employment or compensated service, as
specified, with a party to the proceeding. (Code of Civil
Procedure Section 170.1(a).)
2)Provides that a judge before whom a proceeding was tried or
heard shall be disqualified from participating in any
appellate review of that proceeding. (Code of Civil Procedure
Section 170.1(b).)
3)Provides that, at the request of a party or on its own motion,
an appellate court shall consider whether it is in the
interests of justice to direct that further proceedings be
heard before a trial judge other than the judge whose judgment
or order was reviewed by the appellate court. (Code of Civil
Procedure Section 170.1(c).)
4)Sets forth the manner by which a judge shall recuse himself or
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herself based on a conflict of interest and establishes the
means by which a party or counsel may object to a judge who
fails or refuses to recuse himself or herself where there are
grounds upon which the judge should have been disqualified.
(Code of Civil Procedure Section 170.3.)
5)Permits any party to or attorney appearing in any action
before the court, by written or oral motion, to make a
peremptory challenge to the judge assigned to a case.
Specifies that the motion must be supported by an affidavit or
declaration under penalty of perjury that the assigned judge
is prejudiced against the party or attorney. (Code of Civil
Procedure Section 170.6.)
6)Defines "financial interests," for purposes of determining the
disqualification requirement, to mean ownership of more than 1
percent legal or equitable interest in a party or the subject
matter of the proceeding, or a legal or equitable interest in
a party or the subject matter of the proceeding in excess of
$1500. (Code of Civil Procedure Section 170.5(b).)
COMMENTS : This non-controversial measure seeks to require
superior court judges in California to take two important
cautionary steps to maximize the actual and perceived fairness
of our courts: (1) disclose to the parties appearing before the
court whether any opposing party or counsel has made a campaign
contribution to the judge; and (2) if the contribution is in
excess of $1500, to disqualify themselves from hearing the
matter. The author believes, as does the Judicial Council's
Commission for Impartial Courts (CIC), that such precautions
will strengthen our judiciary by helping to ensure that judicial
decisions are not influenced by campaign contributions in any
way- and just as importantly for the sake of the legitimacy of
judicial system, that campaign contributions do not create even
the slightest appearance of potential judicial bias.
The Caperton Case - The Canary in the Mine? Although
discussions about campaign finance reform usually focus on
officials elected to one of the political branches of
government, a number of recent developments have exposed growing
concerns about the potentially corrupting effect of campaign
contributions in judicial elections. A most egregious example
of this kind of corruption was seen in the stunning facts that
gave rise to the United States Supreme Court recent opinion in
Caperton v. Massey (2009) 129 S. Ct. 2252. In Caperton, a West
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Virginia Supreme Court of Appeals justice, Brent Benjamin,
remarkably refused to recuse himself from a case even though he
had received a whopping $3 million in campaign contributions
from just one of the parties, the Massey Coal Company. Both the
amount and the circumstances of the contribution naturally
raised serious suspicions. In the trial court action brought
against Massey for fraudulent business practices, a jury awarded
the plaintiff $50 million. After the verdict, but before the
appeal of the judgment reached the high court, a Massey
executive donated $3 million to Justice Benjamin's campaign for
a seat on the high court. Benjamin was elected and took his
seat in time to hear Massey's appeal. The opposing party,
Caperton, moved for recusal because of the $3 million
contribution, but West Virginia state law ultimately leaves
recusal to the discretion of the individual justice. Benjamin
refused to recuse himself, and then voted with the majority in a
3-2 decision overturning the judgment against Massey. Caperton
appealed to the U.S. Supreme Court, which, in a 5-4 vote, ruled
that a judge who failed to recuse himself under such
circumstances violated the due process rights of the
non-contributing party. (Caperton, supra at 2257.)
Although one might contend that Caperton was unusual in terms of
the size and timing of the contribution, the general problem
that gave rise to the case is not unique. According to the
National Conference of State Legislatures, thirty-nine states
elect some or all of their judges and all have guidelines for
when a conflict of interest demands judicial recusal. However
it appears that most states, like West Virginia, leave the
ultimate decision to the discretion of the judge, especially at
the appellate level.
Campaign Contribution Increases in Recent Judicial Elections :
Although it is difficult to quantify, most commentators contend
that the amount of money spent on judicial elections in recent
years has increased dramatically. According to studies by two
national legal affairs groups - the Brennan Center for Justice
and Justice at Stake - candidates for state supreme courts
raised over $205 million between 2000 and 2009, compared to only
about $84 million in the previous decade. While these numbers
are still low compared to the amount of money raised for
legislative and executive branch elections, the fact that
contributions to judicial elections have more than doubled over
the last decade is to many a very troubling trend, especially
when one recalls the traditionally non-partisan and often
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uncontested nature of judicial elections. (See e.g. Adam
Skaggs, "Judging for Dollars," The New Republic, April 3, 2010;
Dorothy Samuels," Hanging a 'For Sale" Sign over the Judiciary,"
Id., January 30, 2010.) Brennan Center for Justice, Fair Courts:
Setting Recusal Standards (2008) and James Sample, Lauren Jones,
and Rachel Weiss, The New Politics of Judicial Elections, 2006,
available at www.justiceatstake.org .)
A number of prominent voices have expressed a similar concern
about the impact of judicial spending on judicial integrity and
impartiality, including Sandra Day O'Connor, former Associate
Justice of the U.S. Supreme Court. O'Connor fears that this
danger has been seriously exacerbated by the U.S. Supreme
Court's recent opinion in Citizens United v. FEC (2010)
(discussed more fully below), as that ruling will free
corporations and unions to spend unlimited amounts in
"independent expenditures" on behalf of judicial candidates.
O'Connor especially warns that, even if campaign contributions
do not sway a judge's vote, they nonetheless create a perception
of judicial impartiality that undermines the legitimacy of our
court system. While large campaign contributions to candidates
for legislative and elective offices can also create a
perception of corruption, contributions in judicial elections
are especially problematic in our system of government and
justice-making. Political candidates, after all, promise to
take certain positions on prominent policy issues, and
individuals and groups give them financial support based on
those promised positions. Politicians are expected to act in
the interest of their constituents, including the ones who give
them money. Judges, on the other hand, are expected to make
decisions on the basis of the facts before them and the rule of
law, and they do not have constituents that they are expected to
"represent." As Adam Skaggs of the Brennan Center for Justice
puts it, judges must answer to law, and "the very legitimacy of
the courts depend upon the public believing that judges will
treat every party without bias or favor. If, in the Citizens
United era, states don't adopt public financing and strong
disclosure and disqualification rules, the judiciary's
credibility will dissolve - and quickly." (Adam Skaggs,
"Judging for Dollars," New Republic, April 3, 2010. On Justice
O'Connor, see Samuels, supra; and Adam Liptak, "Former Justice
O'Connor Sees Ill in Elections Finance Ruling," New York Times,
January 27, 2010.)
The Possible Dangerous Effects of Citizens United : The author
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agrees, along with Justice O'Connor and many others, that the
recent campaign finance ruling by the U.S. Supreme Court could
lead to increased spending in judicial elections - and
corresponding threats to the credibility of the judicial branch.
In Citizens United v. FEC (2010) 130 S. Ct. 876, the Court held
that a corporation has a First Amendment right to spend
unlimited amounts for "independent expenditures" on behalf of
political candidates - even if those "independent" expenditures
fund advertisements that endorse or oppose a candidate by name.
President Obama, among others, has voiced his fear that the
ruling will "open the floodgates" on corporate and union
campaign spending and create at least the appearance of
political corruption. Scholars differ on the effect that this
decision will have on judicial elections, but to the extent that
the decision removes limits on independent corporate
contributions, it is possible that there could be more examples
like the one in Caperton v. Massey, discussed above. Indeed, in
that case, of the just over $3 million in contributions, only
$1,000 (the statutory contribution limit in West Virginia) went
directly to Justice Benjamin directly. About $2.5 million went
to a political organization that supported Benjamin and opposed
his opponent, while about $500,000 took the form of "independent
expenditures" for direct mailings and television and newspaper
advertisements. (Caperton, supra at 2257.)
Judicial Campaign Reform Efforts in Other States . Whatever the
impact of Citizens United on judicial elections might be, a
number of states have launched efforts at judicial campaign
finance reform in recent months, either through their
Legislatures or by adopting new court rules. For example, West
Virginia, home of the Caperton case, recently adopted a pilot
project for public financing of Supreme Court elections. Under
the pilot project, Supreme Court candidates would receive public
funding in the 2012 elections in exchange for accepting
voluntary caps on expenditures. West Virginia now joins North
Carolina, New Mexico, and Wisconsin as states with public
financing for judicial elections. In Michigan, the state
Supreme Court adopted rules making it easier to disqualify a
justice from hearing cases where parties have made campaign
contributions to the justice. Nevada is now considering a shift
to merit-based appointments in lieu of judicial elections, but
opinion polls in that state suggest that most Nevadans want to
keep electing their judges. Efforts to shift to merit selection
systems are also being considered in Minnesota and Ohio. (See
e.g. "New West Va. Law Shows 'National Momentum' for Court
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Election Reforms," available at www.justiceatstate.org ; and
"Poll: Many Oppose Plan to Allow Appointment of Judges," Las
Vegas Review-Journal, April 12, 2010.) On the other hand, as if
to prove the adage that the grass is always greener on the other
side, a group in Missouri is pushing an initiative that would
change the Show-Me State's merit-based appointment system with
elections. Interestingly, but perhaps predictably, the source
of campaign contributions for and against the initiative has
itself become a source of controversy. ("Groups Battling over
Missouri Plan are Fuzzy on Donors," Jefferson City
Post-Dispatch, April 14, 2010.) But Missouri appears to be the
exception that proves the rule.
Judicial Campaign Spending and Preventive Reform in California:
For the most part, California has thus far been spared the
highly partisan and expensive judicial election campaigns that
have unfolded in other states, such as Texas, Illinois, and, of
course, West Virginia. In large measure this is because
appellate court elections in California, for the most part, are
uncontested. California appellate justices are appointed and
then run in "retention" elections without an opposing candidate.
Our state Supreme Court justices have rarely faced challenges
in their retention elections, though the celebrated case of
former Chief Justice Rose Bird (where the chief justice and two
of her colleagues faced unprecedented election campaigns against
them by groups who opposed some of their judicial rulings)
illustrates that controversial rulings may occasionally force
Supreme Court justices to raise funds for a statewide campaign -
and given the potential for much more funding availability
post-Citizens United, such occasions may grown in the future.
Thus, as California Associate Supreme Court Justice Ming Chin
has noted of the national trends: "the question is not if these
trends [will] spread to California, but when." In short,
Justice Chin believes that California should act now to prevent
the distressing and dangerous national trend of increased
campaign fundraising in judicial elections from reaching
California. (Ming W. Chin, "An Introduction to the Work of the
Commission for Impartial Courts," California Courts Review, Fall
2007-Winter 2008, p. 13. Emphasis in original.)
Why Initial Version of This Legislation Targets Its
Proscriptions on Trial Court Races: While it is still true that
appellate justices in California do not regularly face contested
elections, our superior court judges do - and such election
contests are more and more appearing similar to traditional
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political campaign "shoot-outs." For example, there are
currently seven candidates for the upcoming June election to
fill two seats on the San Francisco Superior Court. As of
mid-March, one of the candidates had already collected over
$100,000 in campaign contributions and a second had raised just
under $100,000. The amounts collected by the five other
candidates ranged from $10,000 to $77,500. One of the
candidates has voluntarily capped expenditures at $10,000 and
refuses to accept campaign contributions because, he says, "the
more money you feel you have to raise in a judicial campaign,
the more it calls in question your ability to remain impartial
in the future." For superior court judges, the chances that a
campaign contributor might someday appear before the same judge
is not unlikely given that some of the biggest contributors to
judicial campaigns, as exemplified in San Francisco, are large
law firms. ("S.F. Bench Candidate Tops $100K," San Francisco
Recorder, March 23, 2010.) According to the author, even if the
vast majority of superior court judges are scrupulous in
deciding cases based on the facts and the law, without regard to
campaign contributions made by a party or counsel, those
contributions at the very least can create a perception of bias.
This perception, the author notes, may be as damaging to
judicial integrity as actual bias.
California Commission for Impartial Courts : In response to
growing concerns about increasingly partisan and expensive
judicial elections, California Chief Justice Ronald George and
the Judicial Council established the Commission for Impartial
Courts (CIC) in 2007. The CIC was asked to devise proposals to
ensure judicial quality, impartiality, and accountability. The
CIC developed draft recommendations and invited public comment.
The result of this process was a December 2009 report that made
71 recommendations relating to judicial candidate campaign
conduct, judicial campaign finance, judicial selection and
retention procedures, and public information and education.
(CIC, Final Report: Recommendations for Safeguarding Judicial
Quality, Impartiality, and Accountability in California,
December 2009.) Some of the recommendations called for changes
in the Code of Judicial Ethics, others called for legislation,
and still others called for enhanced educational efforts on the
part of the legal profession. Two of the CIC recommendations -
recommendations 29 and 30 - proposed mandatory disclosure and
disqualification requirements very similar to those set forth in
this bill. The CIC concluded that these reforms were meant to
address increasing public concerns throughout the country about
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the impact of money in judicial elections, especially "given the
unique role of the judiciary in our structure of government."
The CIC defended judicial campaign finance reform as follows:
The public expects and is entitled to impartiality in
judicial decisions and, as a result, the more influence
that moneyed interests have or appear to have on
judicial candidates, the more harm is done to the
public's trust and confidence that judicial decisions
are based on the rule of law as opposed to other
considerations. [Mandatory disqualification and
disclosure will] enhance the public's confidence that
the system has safeguards in place to prevent judicial
decisionmaking from being influenced by monetary
contributions. (CIC, Final Report, pp. 8, 30.)
This bill seeks to implement the CIC's recommendation for
mandatory disclosure and disqualification by amending the
existing conflict-of-interest provisions in the Code of Civil
Procedure. Existing law requires trial court judges to
disqualify themselves under a variety of situations that might
create a conflict of interest, such as family ties or a past or
present employment relationship with a party or counsel. (Code
of Civil Procedure Section 170.1.) More pertinent to this bill,
existing law requires judges to disqualify themselves if they
have a "financial interest" in a party or the subject matter
that is in excess of $1500. However, this "financial interest"
is not defined in a way that would include a party's or a
lawyer's campaign contribution. (Code of Civil Procedure 170.5
(b).) This bill, however, would specify that a judge who has
received a campaign contribution in excess of $1500 should
similarly disqualify himself or herself. The procedure by which
a judge shall disqualify himself or herself, and the manner in
which a party may challenge a judge who does not disqualify
himself or herself, would be the same as the disqualification
procedure now required for any other conflict of interest. In
addition, consistent with parallel conflict-of-interest
provisions, this bill would provide that a judge should be
disqualified if he or she believes that the contribution
(whatever the amount) will affect his or her ability to judge
the case impartially, or if there is something about the nature
of the contribution that would cause a person to reasonably
doubt the judge's ability to be impartial - even if the amount
of the contribution does not exceed the $1500 threshold.
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This bill would also require disclosure of any reportable
campaign contributions, even if the amount is not enough to
require disqualification. California's Political Reform Act
(PRA) requires candidates (including judicial candidates) to
file campaign disclosure statements for any contribution that is
reportable under existing rules (the reportable amount is
currently $100). However, unlike candidates to other elective
offices, judicial candidates are not subject to any campaign
contribution limits. Moreover, while PRA requires judicial
candidates to disclose contributions through documents filed
with the Secretary of State, judicial candidates are not
required to alert parties or counsel about any contributions
that they may have received from adverse parties or counsel.
This bill would change that by requiring judges to disclose to
all parties before the court in a particular matter whether any
other party or counsel in the matter has made a reportable
campaign contribution. The manner of disclosure would be the
same as the procedure by which a judge must disclose any other
information that is reasonably relevant to the question of
disqualification as set forth in Canon 3E(2) of the Code of
Judicial Ethics.
Should the Bill's Provisions Apply to Appellate Justices ? As
currently drafted, this bill applies only to superior court
judges in California. It does not apply to appellate justices,
even though the experience of other states suggests that rising
campaign expenditures and increased partisanship in judicial
elections is currently many times most apparent at the appellate
level. Although the CIC Final Report recommended applying
disqualification requirements to appellate justices, it did not
recommend applying disclosure requirements to appellate justices
at this time - in large part because the manner of disclosure
prescribed for trial court judges would not always appear to be
relevant to appellate justices. The Judicial Council of
California, for example, has informed the Committee that parties
appearing before the Courts of Appeal often do not know which
justices will hear their case until the moment that the parties
present their arguments. Therefore, both disclosure and
disqualification would appear to present some additional
practical implementation challenges not necessarily present at
the trial court level.
As for the California Supreme Court, the fact that there are
only seven justices and no possible replacements in the event of
disqualification also appears to present a different and unique
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set of considerations than does the trial court scenario.
Although both the CIC and the author of this bill believe that
the fundamental principle behind mandatory disqualification and
disclosure should apply to appellate justices as well as trial
court judges, the author believes that the special circumstances
of the appellate process - as well as the fact that there is
already an existing statutory process for disqualification for
trial court judges - warrants that the Legislature withhold
extending the bill to appellate justices, at least at this early
time in the bill's legislative journey, in order to permit more
time and consideration on how to implement these requirements at
the appellate level, and whether such application is similarly
warranted at this time.
The author also contends that restricting the application of
this bill only to superior court judges at this time is
warranted by the fact superior court justices face contested
elections for six year terms. Appellate justices, on the other
hand, run in uncontested "retention" elections and, typically,
have no need to raise campaign funds. The only time that an
appellate justice in California would need to raise funds is if
a group or groups mounted a challenge in a retention election.
If this happened (and given the often heated nature of appellate
issues it very well could), the particular justice would
potentially need to raise substantial funds very quickly to
support a statewide campaign. If in the course of that campaign
the justice took contributions from a person or group that later
appears before the justice as counsel or party - as in West
Virginia's Caperton case - then the same logic that compels
disclosure and disqualification for trial court judges would
seem to forcefully apply to appellate justices. However, for
the reasons noted above, both the author and the Judicial
Council believe that more time is needed as the bill moves
forward to consider the appropriate disqualification and
disclosure procedures for appellate justices, and whether
applying the bill's approach to appellate justices is wise.
States Have a "Compelling Interest" in Preserving Actual and
Apparent Judicial Impartiality: Finally, in further support of
this bill, the author stresses that the U.S. Supreme Court has
clearly held that states have a "compelling interest" in
preserving both actual judicial impartiality, as well as the
appearance of judicial impartiality. For example, in Republican
Party of Minnesota v White (2002) 536 U.S. 765, the U.S. Supreme
Court considered the constitutionality of a provision in the
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Minnesota Code of Judicial Conduct that prohibited a judicial
candidate from making public "announcements" about "disputed
legal or political matters." The idea behind the provision was
that such announcements might commit, or appear to commit, the
justice to a predetermined conclusion should the matter come
before the justice. In a 5-4 decision, the Court held that the
provision violated the judicial candidate's free speech rights
under the First Amendment. However, in making this
determination, the Court did not challenge the holding of the
8th Circuit Court that the state had a compelling interest in
preserving the independence and impartiality of the judiciary,
as well as the appearance of independence and impartiality. The
Court struck down the "announce" provision, instead, because of
its sweeping nature - for example, it prohibited announcements
on political as well as legal matters, and it prohibited
announcing mere opinions about those matters as opposed to
"promises" to decide a case in a particular way. In short, the
Court held that provision was not narrowly tailored enough to
meet the admittedly compelling state interest in preserving
judicial impartiality or the appearance thereof - it did not
deny that the interest was compelling. (White, supra, at
774-775.)
This bill, the author contends, is supported by California's
compelling interest in maintaining judicial impartiality and the
appearance of judicial impartiality. It does not, he notes,
raise any First Amendment issues because it does not restrict
the amount of money that a person may contribute to a judicial
campaign, nor does it restrict the amount that a judge may
accept. Rather, as the author contends, it is narrowly and
prudently tailored to serve the reasonable goal of ensuring that
campaign contributions to superior court judges do not influence
judicial decision making or create the appearance of influencing
judicial decision making.
Author's Amendment : As proposed to be amended, this bill would
also appropriately provide that the disqualification requirement
can be waived by the non-campaign contribution contributing
party, so that a party could not attempt to manipulate the
disqualification requirement by cynically making a contribution
to a disfavored judge solely for the ironic purpose of later
being able to disqualify that judge. Therefore, the author is
making the following amendment in this Committee:
On page 5 after line 12 insert:
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(D) The disqualification required under this paragraph may be
waived by the party that did not make the contribution described
in subparagraph (A).
ARGUMENTS IN SUPPORT (if amended) : The Judicial Council of
California generally supports this bill as a measure that will,
consistent with the recommendations of the CIC, "enhance the
public's confidence that the system has safeguards in place to
prevent judicial decisionmaking from being influenced by
monetary contributions." However, the Judicial Council
conditions its support on an amendment that would reduce the
time period for which the requirements for disqualification and
disclosure would apply to only two years. This bill, however,
would impose the duty to disqualify and disclose for the entire
six year term for which the contribution was given. The
Judicial Council notes that CIC recommended two years and claims
that six years would be "too long." In support of this
position, the Judicial Council points to the provision in the
Code of Civil Procedure that requires disqualification if a
judge, within the last two years, has participated in
discussions regarding prospective employment with one of the
parties or counsel. The Judicial Council also claims that a six
year period might cause parties to "manipulate" the requirement
by giving a contribution to a disfavored judge for the sole
purpose of having that judge removed.
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council of California (if amended)
Opposition
None on file
Analysis Prepared by : Thomas Clark and Drew Liebert / JUD. /
(916) 319-2334