Thursday, April 9, 2009
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Panel Would Ban Judicial Candidates from Seeking Partisan Support
Commission for Impartial Courts Releases Draft Report, Asks for Public Comment
By KENNETH OFGANG, Staff Writer
The Commission for Impartial Courts yesterday made public a draft of its final report and asked for public comments on its recommendations, which include a proposed rule that would ban judicial candidates from seeking support from partisan groups..
The commission was appointed two years ago by Chief Justice Ronald M. George in response to developments in other states that the chief justice said were threats to judicial integrity.
“The manner in which judges are selected, retained, and removed from office can have a serious impact on the independence of the judiciary,” George said at the time. “It is essential that we make every effort to avoid politicizing the judiciary so that public confidence in the quality, impartiality, and accountability of judges is protected and maintained.”
Steering Committee
The commission consists of a steering committee chaired by Supreme Court Justice Ming Chin, along with four task forces that studied particular subject areas. Superior Court Judge Peter P. Espinoza and California State University Chancellor Charles B. Reed were the local members of the steering committee.
The draft report contains, and discusses, 109 recommendations adopted by the steering committee. They cover selection and retention of judges, conduct by judicial candidates, campaign finance and advertising, and public education and information about the judiciary, judicial elections, and judicial candidates.
The most controversial recommendation may be a proposal that judicial candidates “be prohibited from seeking or using endorsements from political organizations.” Such endorsements have been increasingly used by candidates in Los Angeles Superior Court contests in recent years.
Endorsement Prohibition
The committee acknowledged that party organizations cannot, under First Amendment case law, be prohibited from making such endorsements, and acknowledged reservations about the constitutionality of its proposal. It concluded, however, that “[b]arring judicial candidates from seeking or using such endorsements would help maintain the nonpartisan nature of judicial elections” and said there was “no authority for the proposition that a judicial candidate must be permitted to seek and use those political party endorsements.’
Another proposal that may cause contention is the expansion of the role of the State Bar Commission on Judicial Nominees Evaluation to include the evaluation of candidates in contested judicial elections, along with a requirement that those evaluations be published in the official ballot materials.
The committee also recommended requiring an announcement that a judicial nominee has been rated “not qualified” by the JNE Commission at the time of the appointment. Under current law, such announcements are made subsequent to the appointment and solely at the discretion of the commission.
Another recommendation of the committee is that judges be required to disclose to litigants and counsel that they have received a contribution from an adversary that meets the state reporting threshold, currently $100, and to recuse themselves—absent waiver—if the contribution is in excess of $1,500.
The latter amount would be subject to adjustment in the future, under the committee proposal. Contributions below that threshold might still require recusal if they raise reasonable doubts about a judge’s impartiality, or would otherwise be grounds for disqualification under current law.
Higher thresholds would apply for the recusal of appellate justices. California Supreme Court justices, for example, would have to step aside if an attorney or litigant contributed to their retention campaigns in an amount equaling or exceeding the maximum contribution to a candidate for governor, currently $20,000.
The committee rejected suggestions that judicial campaigns be publicly financed, saying it saw no need to make such a drastic campaign in the system at this time. It would, however, ban direct contributions from unions or corporations to judicial campaigns, although such entities could form political action committees that would permit their members or employees to donate.
Other recommendations include:
•Mandatory recusal if a judge has made a statement, other than in a ruling or opinion or during a proceeding, “that a reasonable person would believe commits the judge” to rule a certain way.
•The establishment of unofficial statewide and local committees on fair judicial campaign practices. The Los Angeles County Bar Association already has such a committee.
•Amending the Code of Judicial Ethics to clarify that a judge may respond to criticism of his or her handling of a case, provided the case is no longer pending in any court, and may in any event provide a transcript, minute order, or similar document containing an official record of what transpired.
•Special training for judges on how to respond to questionnaires that ask for their opinions on issues that have come, or may come, before their courts.
•Encouraging the State Bar to discipline attorneys who engage in misconduct in their campaigns for judicial office.
•Mandatory electronic filing of judicial candidates’ campaign finance reports, regardless of how much a candidate raises or spends.
•An increase in the number of signatures required to place a judicial recall on the ballot, which would require a state constitutional amendment, and an increase in the number of signatures required to subject an unopposed Superior Court incumbent to challenge by a write-in candidate. The latter change could be made by statute.
The full report may be viewed at the state court website at http://www.courtinfo.ca.gov/jc/tflists/commimpart.htm. The Administrative Office of the Courts said the comment deadline is May 26 and that additional information is available from AOC project director Christine Patton at christine.patton@jud.ca.gov.
Copyright 2009, Metropolitan News Company