Tweaking the way judges are picked

By Patti White

White

In many other states, courts and judges have been attacked by partisan and special interests seeking to influence judicial decisions. In a proactive effort to forestall such activity in California and to ensure judicial impartiality and accountability, Chief Justice Ron George convened the Commission for Impartial Courts (CIC), chaired by Justice Ming Chin. The commission was composed of a steering committee and four task forces that addressed judicial campaign conduct, judicial campaign finance, judicial selection and retention, and public information and education. Each task force was divided into working groups and worked with consultants. The steering committee melded the findings of the task forces into a report containing 109 recommendations. The report is posted on the AOC Web site for public comment until May 26, and the steering committee will finalize it after reviewing the public comments.

In the area of judicial selection, the task force studied merit-based methods of selecting judges in many other states and concluded that the State Bar’s Commission on Judicial Nominees Evaluation — the JNE Commission — has served California well as a special form of merit-based screening and should be retained.

The commission has recommended expanding the role of the JNE Commission, however, by providing for participation of all candidates in contested elections, including sitting judges, in a JNE evaluation process. Another recommendation is that JNE ratings in contested elections be reported as part of the voter information. The commission also recommends that a JNE rating of “not qualified” be made public automatically at the time of appointment of a person with that rating. JNE should consider, as one of the factors, the candidate’s exposure to and experience with diverse populations and issues related to those populations.

If the commission recommendations are implemented, California will not experience the type of problem that occurred in West Virginia in the well-publicized case in which Massey Energy Co. contributed approximately $3 million to elect a Supreme Court justice, who was the swing vote on a case involving Massey Energy. This was the case that inspired John Grisham’s The Appeal. One recommendation is that trial judges maintain a list of campaign contributions of $100 or more and disclose contributions by a litigant orally or in writing to those appearing in court if one of the parties has contributed to the judge’s campaign. This obligation would continue for one year after the judge assumes office. Judges would be required to recuse themselves from hearing or deciding cases in which a litigant has contributed $1,500 or more to the judge’s campaign. If the judge is disqualified because of a campaign contribution, the disqualification must last for a minimum of two years from the date the judge took office or the date of the contribution, whichever is later.

The commission also has recommended that legislation be sponsored to change the requirements for placing an unopposed judicial candidate on the ballot from the current requirement of 100 signatures to one percent of the voters for district attorney in the last county election. Another recommendation is that all judicial candidates be required to complete a training course in ethical campaign conduct. And the commission recommends the establishment of informal Fair Judicial Elections Committees, similar to the one that exists in Santa Clara County, to hear challenges to campaign statements and to help educate the public.

The commission supports strategies for making meaningful changes to K-12 civics education in California public schools, so that students will gain a better understanding of the role of the third branch of government. It encourages public outreach by the State Bar and local bars and recommends the creation of a compelling video on the role of the judicial branch. The State Bar has been asked to grant MCLE credits to attorneys conducting K-12 civics and law-related education programs.

Finally, the commission hopes to foster judicial accountability by encouraging widespread participation by the courts in CourTools or similar court performance measures and by implementing confidential judicial performance evaluations for the purpose of self-improvement.

This report is the culmination of many hours of work by appellate and trial court judges, bar leaders and representatives from educational institutions, the media, the business community and civic groups.

Implementation of these recommendations will help ensure that the proud tradition of impartial California courts will continue for future generations.

• Patti White represents District 3 on the State Bar Board of Governors and serves on the steering commmittee of the Commission for Impartial Courts.