BILL NUMBER: SB 182 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 22, 2011
AMENDED IN SENATE APRIL 12, 2011
AMENDED IN SENATE MARCH 10, 2011
INTRODUCED BY Senator Corbett
(Coauthors: Senators Hancock, Kehoe, and Leno)
(Coauthor: Assembly Member Ammiano)
FEBRUARY 7, 2011
An act to amend Section 12011.5 of the Government Code, relating
to judicial appointments.
LEGISLATIVE COUNSEL'S DIGEST
SB 182, as amended, Corbett. Judiciary: demographic data.
Existing
(1) Existing law requires the
Governor, the designated agency of the State Bar responsible for the
evaluation of judicial candidates, and the Administrative Office of
the Courts to annually collect demographic data relating to judicial
applicants, judicial appointees or nominees, judicial candidates, and
justices and judges, as specified, relative to ethnicity, race, and
gender. These entities are required to release the demographic data
on or before March 1 of each year.
This bill would expand these provisions to include the collection
and release of demographic data relative to gender identity and
sexual orientation. This bill would require a departing Governor to
provide the demographic data collected for the year to the incoming
Governor, as specified. The bill would require the incoming Governor
to release the provided demographic data, as prescribed. The bill
also would require any demographic data disclosed
or released pursuant to these provisions to also
indicate the percentage of respondents who declined to respond.
This bill would also make technical changes.
(2) This bill would incorporate additional changes in Section
12011.5 of the Government Code proposed by AB 126, that would become
operative only if AB 126 and this bill are both chaptered and become
effective on or before January 1, 2012, and this bill is chaptered
last.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 12011.5 of the Government Code is amended to
read:
12011.5. (a) In the event of a vacancy in a judicial office to be
filled by appointment of the Governor, or in the event that a
declaration of candidacy is not filed by a judge and the Governor is
required under subdivision (d) of Section 16 of Article VI of the
Constitution to nominate a candidate, the Governor shall first submit
to a designated agency of the State Bar of California the names of
all potential appointees or nominees for the judicial office for
evaluation of their judicial qualifications.
(b) The membership of the designated agency of the State Bar
responsible for evaluation of judicial candidates shall consist of
attorney members and public members with the ratio of public members
to attorney members determined, to the extent practical, by the ratio
established in Sections 6013.4 and 6013.5 of the Business and
Professions Code. It is the intent of this subdivision that the
designated agency of the State Bar responsible for evaluation of
judicial candidates shall be broadly representative of the ethnic,
gender, and racial diversity of the population of California and
composed in accordance with Sections 11140 and 11141 of the
Government Code. The further intent of this subdivision is to
establish a selection process for membership on the designated agency
of the State Bar responsible for evaluation of judicial candidates
under which no member of that agency shall provide inappropriate,
multiple representation for purposes of this subdivision.
(c) Upon receipt from the Governor of the names of candidates for
judicial office and their completed personal data questionnaires, the
State Bar shall employ appropriate confidential procedures to
evaluate and determine the qualifications of each candidate with
regard to his or her ability to discharge the judicial duties of the
office to which the appointment or nomination shall be made. Within
90 days of submission by the Governor of the name of a potential
appointee for judicial office, the State Bar shall report in
confidence to the Governor its recommendation whether the candidate
is exceptionally well qualified, well qualified, qualified, or not
qualified and the reasons therefor, and may report, in confidence,
other information as the State Bar deems pertinent to the
qualifications of the candidate.
(d) In determining the qualifications of a candidate for judicial
office, the State Bar shall consider, among other appropriate
factors, his or her industry, judicial temperament, honesty,
objectivity, community respect, integrity, health, ability, and legal
experience. The State Bar shall consider legal experience broadly,
including, but not limited to, litigation and nonlitigation
experience, legal work for a business or nonprofit entity, experience
as a law professor or other academic position, legal work in any of
the three branches of government, and legal work in dispute
resolution.
(e) The State Bar shall establish and promulgate rules and
procedures regarding the investigation of the qualifications of
candidates for judicial office by the designated agency. These rules
and procedures shall establish appropriate, confidential methods for
disclosing to the candidate the subject matter of substantial and
credible adverse allegations received regarding the candidate's
health, physical or mental condition, or moral turpitude which,
unless rebutted, would be determinative of the candidate's
unsuitability for judicial office. No provision of this section shall
be construed as requiring that any rule or procedure be adopted that
permits the disclosure to the candidate of information from which
the candidate may infer the source, and no information shall either
be disclosed to the candidate nor be obtainable by any process that
would jeopardize the confidentiality of communications from persons
whose opinion has been sought on the candidate's qualifications.
(f) All communications, written, verbal, or otherwise, of and to
the Governor, the Governor's authorized agents or employees,
including, but not limited to, the Governor's Legal Affairs Secretary
and Appointments Secretary, or of and to the State Bar in
furtherance of the purposes of this section are absolutely privileged
from disclosure and confidential, and any communication made in the
discretion of the Governor or the State Bar with a candidate or
person providing information in furtherance of the purposes of this
section shall not constitute a waiver of the privilege or a breach of
confidentiality.
(g) If the Governor has appointed a person to a trial court who
has been found not qualified by the designated agency, the State Bar
may make public this fact after due notice to the appointee of its
intention to do so, but that notice or disclosure shall not
constitute a waiver of privilege or breach of confidentiality with
respect to communications of or to the State Bar concerning the
qualifications of the appointee.
(h) If the Governor has nominated or appointed a person to the
Supreme Court or court of appeal in accordance with subdivision (d)
of Section 16 of Article VI of the California Constitution, the
Commission on Judicial Appointments may invite, or the State Bar's
governing board or its designated agency may submit to the commission
its recommendation, and the reasons therefor, but that disclosure
shall not constitute a waiver of privilege or breach of
confidentiality with respect to communications of or to the State Bar
concerning the qualifications of the nominee or appointee.
(i) No person or entity shall be liable for any injury caused by
any act or failure to act, be it negligent, intentional,
discretionary, or otherwise, in the furtherance of the purposes of
this section, including, but not limited to, providing or receiving
any information, making any recommendations, and giving any reasons
therefor. As used in this section, the term "State Bar" means its
governing board and members thereof, the designated agency of the
State Bar and members thereof, and employees and agents of the State
Bar.
(j) At any time prior to the receipt of the report from the State
Bar specified in subdivision (c) the Governor may withdraw the name
of any person submitted to the State Bar for evaluation pursuant to
this section.
(k) No candidate for judicial office may be appointed until the
State Bar has reported to the Governor pursuant to this section, or
until 90 days have elapsed after submission of the candidate's name
to the State Bar, whichever occurs earlier. The requirement of this
subdivision shall not apply to any vacancy in judicial office
occurring within the 90 days preceding the expiration of the Governor'
s term of office, provided, however, that with respect to those
vacancies and with respect to nominations pursuant to subdivision (d)
of Section 16 of Article VI of the California Constitution, the
Governor shall be required to submit any candidate's name to the
State Bar in order to provide an opportunity, if time permits, to
make an evaluation.
(l) Nothing in this section shall be construed as imposing an
additional requirement for an appointment or nomination to judicial
office, nor shall anything in this section be construed as adding any
additional qualifications for the office of a judge.
(m) The Board of Governors of the State Bar shall not conduct or
participate in, or authorize any committee, agency, employee, or
commission of the State Bar to conduct or participate in, any
evaluation, review, or report on the qualifications, integrity,
diligence, or judicial ability of any specific justice of a court
provided for in Section 2 or 3 of Article VI of the California
Constitution without prior review and statutory authorization by the
Legislature, except an evaluation, review, or report on potential
judicial appointees or nominees as authorized by this section.
The provisions of this subdivision shall not be construed to
prohibit a member of the State Bar from conducting or participating
in an evaluation, review, or report in his or her individual
capacity.
(n) (1) Notwithstanding any other provision of this section, but
subject to paragraph (2), on or before March 1 of each year, all of
the following shall occur:
(A) The Governor shall collect and release, on an aggregate
statewide basis, all of the following:
(i) Demographic data provided by all judicial applicants relative
to ethnicity, race, gender, gender identity, and sexual orientation.
(ii) Demographic data relative to ethnicity, race, gender, gender
identity, and sexual orientation, as provided by all judicial
applicants, both as to those judicial applicants who have been and
those who have not been submitted to the State Bar for evaluation.
(iii) Demographic data relative to ethnicity, race, gender, gender
identity, and sexual orientation of all judicial appointments or
nominations, as provided by the judicial appointee or nominee.
(B) The designated agency of the State Bar responsible for
evaluation of judicial candidates shall collect and release both of
the following on an aggregate statewide basis:
(i) Statewide demographic data provided by all judicial applicants
reviewed relative to ethnicity, race, gender, gender identity,
sexual orientation, and areas of legal practice and employment.
(ii) The statewide summary of the recommendations of the
designated agency of the State Bar by ethnicity, race, gender, gender
identity, sexual orientation, and areas of legal practice and
employment.
(C) The Administrative Office of the Courts shall collect and
release the demographic data provided by justices and judges
described in Article VI of the California Constitution relative to
ethnicity, race, gender, gender identity, and sexual orientation by
specific jurisdiction.
(2) For purposes of subparagraph (A) of paragraph (1), in the year
following a general election or recall election that will result in
a new Governor taking office prior to March 1, the departing Governor
shall provide all of the demographic data collected for the year by
that Governor pursuant to this subdivision to the incoming Governor.
The incoming Governor shall then be responsible for releasing the
provided demographic data, and the demographic data collected by that
incoming Governor, if any, prior to the March 1 deadline imposed
pursuant to this subdivision.
(3) Any demographic data disclosed or released pursuant to this
subdivision shall disclose only aggregated statistical data and shall
not identify any individual applicant, justice, or judge.
(4) Any demographic data disclosed or released pursuant to this
subdivision shall also indicate the percentage of respondents who
declined to respond.
(o) If any provision of this section other than a provision
relating to or providing for confidentiality or privilege from
disclosure of any communication or matter, or the application of the
provision to any person or circumstances, is held invalid, the
remainder of this section to the extent it can be given effect, or
the application of the provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
thereby, and to this extent the provisions of this section are
severable. If any other act of the Legislature conflicts with the
provisions of this section, this section shall prevail.
SEC. 1.5. Section 12011.5 of the
Government Code is amended to read:
12011.5. (a) In the event of a vacancy in a judicial office to be
filled by appointment of the Governor, or in the event that a
declaration of candidacy is not filed by a judge and the Governor is
required under subdivision (d) of Section 16 of Article VI of the
Constitution to nominate a candidate, the Governor shall first submit
to a designated agency of the State Bar of California the names of
all potential appointees or nominees for the judicial office for
evaluation of their judicial qualifications.
(b) The membership of the designated agency of the State Bar
responsible for evaluation of judicial candidates shall consist of
attorney members and public members with the ratio of public members
to attorney members determined, to the extent practical, by the ratio
established in Sections 6013.4 and 6013.5 of the Business and
Professions Code. It is the intent of this subdivision that the
designated agency of the State Bar responsible for evaluation of
judicial candidates shall be broadly representative of the ethnic,
gender, and racial diversity of the population of California and
composed in accordance with Sections 11140 and 11141 of the
Government Code . The further intent of this subdivision is
to establish a selection process for membership on the designated
agency of the State Bar responsible for evaluation of judicial
candidates under which no member of that agency shall provide
inappropriate, multiple representation for purposes of this
subdivision. Each member of the designated agency of the State
Bar responsible for evaluation of judicial candidates shall complete
a minimum of 60 minutes of training in the areas of
fairness and bias in the judicial appointments process at orientation
for new members. In the event the member serves more than one term,
the member shall complete an additional 60 minutes of that training
during the member's service on the designated agency of the State Bar
responsible for evaluation of judicial candidates.
(c) Upon receipt from the Governor of the names of candidates for
judicial office and their completed personal data questionnaires, the
State Bar shall employ appropriate confidential procedures to
evaluate and determine the qualifications of each candidate with
regard to his or her ability to discharge the judicial duties of the
office to which the appointment or nomination shall be made. Within
90 days of submission by the Governor of the name of a potential
appointee for judicial office, the State Bar shall report in
confidence to the Governor its recommendation whether the candidate
is exceptionally well qualified, well qualified, qualified, or not
qualified and the reasons therefor, and may report, in confidence,
other information as the State Bar deems pertinent to the
qualifications of the candidate.
(d) In determining the qualifications of a candidate for judicial
office, the State Bar shall consider, among other appropriate
factors, his or her industry, judicial temperament, honesty,
objectivity, community respect, integrity, health, ability, and legal
experience. The State Bar shall consider legal experience broadly,
including, but not limited to, litigation and nonlitigation
experience, legal work for a business or nonprofit entity, experience
as a law professor or other academic position, legal work in any of
the three branches of government, and legal work in dispute
resolution.
(e) The State Bar shall establish and promulgate rules and
procedures regarding the investigation of the qualifications of
candidates for judicial office by the designated agency. These rules
and procedures shall establish appropriate, confidential methods for
disclosing to the candidate the subject matter of substantial and
credible adverse allegations received regarding the candidate's
health, physical or mental condition, or moral turpitude which,
unless rebutted, would be determinative of the candidate's
unsuitability for judicial office. No provision of this section shall
be construed as requiring that any rule or procedure be adopted that
permits the disclosure to the candidate of information from which
the candidate may infer the source, and no information shall either
be disclosed to the candidate nor be obtainable by any process that
would jeopardize the confidentiality of communications from persons
whose opinion has been sought on the candidate's qualifications.
(f) All communications, written, verbal, or otherwise, of and to
the Governor, the Governor's authorized agents or employees,
including, but not limited to, the Governor's Legal Affairs Secretary
and Appointments Secretary, or of and to the State Bar in
furtherance of the purposes of this section are absolutely privileged
from disclosure and confidential, and any communication made in the
discretion of the Governor or the State Bar with a candidate or
person providing information in furtherance of the purposes of this
section shall not constitute a waiver of the privilege or a breach of
confidentiality.
(g) If the Governor has appointed a person to a trial court who
has been found not qualified by the designated agency, the State Bar
may make public this fact after due notice to the appointee of its
intention to do so, but that notice or disclosure shall not
constitute a waiver of privilege or breach of confidentiality with
respect to communications of or to the State Bar concerning the
qualifications of the appointee.
(h) If the Governor has nominated or appointed a person to the
Supreme Court or court of appeal in accordance with subdivision (d)
of Section 16 of Article VI of the California Constitution, the
Commission on Judicial Appointments may invite, or the State Bar's
governing board or its designated agency may submit to the commission
its recommendation, and the reasons therefor, but that disclosure
shall not constitute a waiver of privilege or breach of
confidentiality with respect to communications of or to the State Bar
concerning the qualifications of the nominee or appointee.
(i) No person or entity shall be liable for any injury caused by
any act or failure to act, be it negligent, intentional,
discretionary, or otherwise, in the furtherance of the purposes of
this section, including, but not limited to, providing or receiving
any information, making any recommendations, and giving any reasons
therefor. As used in this section, the term "State Bar" means its
governing board and members thereof, the designated agency of the
State Bar and members thereof, and employees and agents of the State
Bar.
(j) At any time prior to the receipt of the report from the State
Bar specified in subdivision (c) the Governor may withdraw the name
of any person submitted to the State Bar for evaluation pursuant to
this section.
(k) No A candidate for judicial
office may shall not be appointed until
the State Bar has reported to the Governor pursuant to this section,
or until 90 days have elapsed after submission of the candidate's
name to the State Bar, whichever occurs earlier. The requirement of
this subdivision shall not apply to any vacancy in judicial office
occurring within the 90 days preceding the expiration of the Governor'
s term of office, provided, however, that with respect to those
vacancies and with respect to nominations pursuant to subdivision (d)
of Section 16 of Article VI of the California Constitution, the
Governor shall be required to submit any candidate's name to the
State Bar in order to provide an opportunity, if time permits, to
make an evaluation.
(l) Nothing in this section shall be construed as imposing an
additional requirement for an appointment or nomination to judicial
office, nor shall anything in this section be construed as adding any
additional qualifications for the office of a judge.
(m) The Board of Governors of the State Bar shall not conduct or
participate in, or authorize any committee, agency, employee, or
commission of the State Bar to conduct or participate in, any
evaluation, review, or report on the qualifications, integrity,
diligence, or judicial ability of any specific justice of a court
provided for in Section 2 or 3 of Article VI of the California
Constitution without prior review and statutory authorization by the
Legislature, except an evaluation, review, or report on potential
judicial appointees or nominees as authorized by this section.
The provisions of this subdivision shall not be construed to
prohibit a member of the State Bar from conducting or participating
in an evaluation, review, or report in his or her individual
capacity.
(n) (1) Notwithstanding any other provision of this section,
on or before March 1, 2007, and but subject
to paragraph (2), on or before March 1 of each year
thereafter for the prior calendar year , all of
the following shall occur:
(A) The Governor shall collect and release, on an aggregate
statewide basis, all of the following:
(i) Demographic data provided by all judicial applicants relative
to ethnicity, race, and gender ,
gender identity, and sexual orientation .
(ii) Demographic data relative to ethnicity, race, and
gender , gender identity, and sexual orientation
as provided by all judicial applicants, both as to those judicial
applicants who have been and those who have not been submitted to the
State Bar for evaluation.
(iii) Demographic data relative to ethnicity, race, and
gender , gender identity, and sexual orientation
of all judicial appointments or nominations as provided by the
judicial appointee or nominee.
(B) The designated agency of the State Bar responsible for
evaluation of judicial candidates shall collect and release both of
the following on an aggregate statewide basis:
(i) Statewide demographic data provided by all judicial applicants
reviewed relative to ethnicity, race, gender, gender identity,
sexual orientation, and areas of legal practice and employment.
(ii) The statewide summary of the recommendations of the
designated agency of the State Bar by ethnicity, race, gender,
gender identity, sexual orientation, and areas of legal
practice and employment.
(C) The Administrative Office of the Courts shall collect and
release the demographic data provided by justices and judges
described in Article VI of the California Constitution relative to
ethnicity, race, and gender, gender identity,
and sexual orientation by specific jurisdiction.
(2) For purposes of subparagraph (A) of paragraph (1), in the year
following a general election or recall election that will result in
a new Governor taking office prior to March 1, the departing Governor
shall provide all of the demographic data collected for the year by
that Governor pursuant to this subdivision to the incoming Governor.
The incoming Governor shall then be responsible for releasing the
provided demographic data, and the demographic data collected by that
incoming Governor, if any, prior to the March 1 deadline imposed
pursuant to this subdivision.
(2)
(3) Any demographic data disclosed or released pursuant
to this subdivision shall disclose only aggregated statistical data
and shall not identify any individual applicant, justice, or judge.
(4) The State Bar and the Administrative Office of the Courts
shall 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
United States Census Bureau for the 2010 Census for reporting
purposes.
(5) Any demographic data disclosed or released pursuant to this
subdivision shall also indicate the percentage of respondents who
declined to respond.
(o) Members of judicial selection advisory committees are
encouraged to recommend candidates from diverse backgrounds and
cultures reflecting the demographics of California.
(o)
(p) If any provision of this section other than a
provision relating to or providing for confidentiality or privilege
from disclosure of any communication or matter, or the application of
the provision to any person or circumstances, is held invalid, the
remainder of this section to the extent it can be given effect, or
the application of the provision to persons or circumstances other
than those as to which it is held invalid, shall not be affected
thereby, and to this extent the provisions of this section are
severable. If any other act of the Legislature conflicts with the
provisions of this section, this section shall prevail.
SEC. 2. Section 1.5 of this bill incorporates
amendments to Section 12011.5 of the Government Code proposed by both
this bill and Assembly Bill 126. It shall only become operative if
(1) both bills are enacted and become effective on January 1, 2012,
(2) each bill amends Section 12011.5 of the Government Code, and (3)
this bill is enacted after Assembly Bill 126, in which case Section 1
of this bill shall not become operative.