by Kathleen O. Beitiks
... Continued from frontpage
In June 1996, former bar president Jim Towery announced the formation of an advisory committee to review the rules and procedures of the JNE Commission after the group came under fire for its negative rating of Janice Rogers Brown, Gov. Pete Wilson's nomination to the state Supreme Court.
Chaired by California Court of Appeal Justice James Ward, the advisory committee spent a year delving into the JNE Commission's process of reviewing the governor's nominees for seats on the bench and came up with 32 recommendations.
Justice Ward said he was not discouraged by the board's lack of consensus on the eight items. "It's unfortunate it did not get entirely resolved," he said, "but the issues are complicated and difficult."
Ward said he was pleased that the majority of his committee's recommendations were adopted and that the board's focus is now on some of the report's "tough issues."
Justice Ward told board members that he stood by his committee's report and indicated his dismay that a board task force made a "last-minute attempt to compromise our recommendations" after his committee's year of meetings and discussions.
Board member Malissa McKeith, a member of the task force which reviewed the Ward committee's 32 recommendations, gave a lengthy presentation on her findings, which she termed compromises.
Among other things, McKeith disagreed with the proposal to permit the governor's appointments secretary to observe JNE meetings.
McKeith's report recommended that the governor appoint a non-voting representative to the JNE Review Committee, which hears appeals to JNE Commission decisions. That representative would be subject to the statutory confidential requirements of the JNE process.
However, in a letter to the board, Lisa Wible Wright, chair of the JNE Review Committee, urged board members to vote against that proposal, saying any such an observer would have "a chilling effect," and might undermine "crucial confidentiality" aspects of the process, as well as create the appearance that the committee's decisions are influenced by partisan concerns.
During the day-long meeting held in Los Angeles, board members also tinkered with the JNE Commission's mission statement, finally agreeing to leave it untouched, but inserting the word "unbiased" in the recommendation listing factors to be considered for judicial candidates.
Board members also disagreed with the committee's recommendation that attorney members of the JNE Commission have a minimum of five years of practice.
"It's a bad rule," said board member Ray Marshall, explaining that it suggests bias against youth on the part of the board. He added that there was no empirical data to suggest that attorneys with less than five years of practice were any less qualified than those with more years. It also was pointed out that the advisory committee's recommendation would disqualify a 40-year-old newly admitted attorney who might be a valuable addition to JNE.
Ward said his group felt that the perception of experience with age was important for those who come before the JNE Commission.
Other recommendations pulled for further discussion dealt with the dual role of JNE commissioners, rating designations of judicial candidates, transmittal of confidential forms and details of the JNE appeals process.
Ward said the committee felt the governor should be involved in the JNE process and that permitting the appointments secretary to sit as an observer would be a good way to show the governor how hard JNE commissioners work. "Worries about confidentiality are real," said Ward, "but they can be overcome."
At the very least, Ward said he would urge the board to adopt a rule allowing for some representative of the governor on the JNE Review Committee.
The Ward committee also recommended that appeals of JNE Commission decisions be handled by an enlarged review committee, from three to five members, with one member from the board of governors and four former JNE members.
In addition, the advisory group recommended that the JNE Review Committee have access to confidential questionnaires and be allowed to remand or reverse "not recommended ratings."
Setting up a panel to review appellate judge nominees also was on the Ward committee's list of recommendations.
"We put in place this different treatment of appellate appointees in response to the judiciary's thoughts that JNE was not well-equipped [to review appellate nominees]," said Ward.
Ward said that although the recommendation might be construed as "awkward and costly," it was necessary to respond to criticism.
Judith Copeland, current chair of the JNE Commission, told board members that they could live with the Ward committee's recommendations, except for the issue of a dual JNE for appellate nominees.
A hot group
Copeland defended the current 27 JNE commissioners, saying they were more than qualified to review appellate applicants, with one member a Fulbright scholar, another a county counsel, two attorneys with more than 30 years of practice and another with more than 40 years.
"We're a hot group," she said.