The amendments, which become effective in this year’s election, remove the exemption from §89502 and §89503 for judicial candidates. The exemption for judges is retained, under the theory that they are already covered by honoraria and gift provisions in Code of Civil Procedure §170.6 fn. 2.
While like treatment
may have been the Legislature’s announced intent, it is not the effect.
A flaw is that the Government Code provisions, which are part of the Political
Reform Act, create the prospect of monetary penalties, which §170.9
does not, and lack certain exemptions which §170.9 affords. Inherent
in the amendments are constitutional infirmities.
Secs. 89502 and 89503, as applied to lawyers’ conduct in judicial races, constitute ethical requirements. Logically, such requirements would be contained in the Code of Professional Responsibility fn. 3.
Likewise, Code of Civil Procedure §170.9 -- which has no relation to civil procedure -- would logically be found in the Code of Judicial Ethics. Sec. 170.9, subd. (m) provides that "[t]he Commission on Judicial Performance shall enforce the prohibitions of this section." The commission, which in the business of monitoring judicial conduct, is the appropriate body to enforce these particular standards -- which sensibly would be in the same code with the others the commission enforces.
The odd placement of these provisions apparently stems from the base desire of the Legislature to slap back at the judiciary. It is widely perceived that lawmakers remain in a snit over the California Supreme Court’s decision upholding term limits for them fn. 4. Legislature v. Eu (1991) 54 Cal.3d 492. Rather than merely enacting legislation requiring that the rules of ethics be formulated regulating acceptance of fees and presents by judges and judicial candidates, the legislators set the constraints, themselves, to parallel those with which they were saddled.
First there came AB 3638 (Margolin, D-Los Angeles) in 1994, creating §170.9. Roll call records show that it passed the Assembly on May 23, 1994 by a vote of 72-0; passed in the Senate on Aug. 25, 1994 by a vote of 39-0; went to the Assembly for concurrence in amendments, and passed on Aug. 30 by 77-1.
The Senate Floor bill analysis read: "This bill imposes the same gift limits and prohibitions on acceptance of honoraria upon judges that are imposed on state officials."
On the surface, the bill merely imposed requirements on judges that other officials had to abide by. But judges are not like other officials; bound by a code of ethics, the violation of which can result in discipline or removal from office, they face burdens and scrutiny which other officials are spared.
Once §170.9 went into effect, the unsuitability of certain standards when applied to judges became clear -- such as barring gifts of a value exceeding $250 where the persons bestowing those gifts had a relationship sufficiently close to the judge that recusal would have been mandatory. Questions arose as to such matters as whether a judge could receive an engagement ring worth more than $250, and the consensus was: no.
Then came SB 1697. As introduced by Kopp on Feb. 21, 1996, it would have repealed Code of Civil Procedure §170.9, and removed the exemption in §89502 and §89503 for judges and judicial candidates. The bill would have rendered them subject to the authority of the Fair Political Practices Commission.
The California Judges Assn. and the Judicial Council balked at judges being answerable to the FPPC. See bill analysis, Senate Judiciary Committee, Page 8.
Kopp was at that point licking his wounds after a loss the year before in the California Supreme Court. Kopp v. Fair Political Practices Commission (1995) 11 Cal.4th 607. Sweeping campaign-reform legislation he and Assemblyman Ross Johnson, D-North Orange County, had concocted had been invalidated by a federal district court (Service Employees v. Fair Political Practices (E.D.Cal. 1990) 747 F.Supp. 580, and that decision was affirmed on appeal (Service Employees v. Fair Political Practices (9th Cir. 1992) 955 F.2d 1312. The state Supreme Court rejected Kopp’s bid to have it judicially redraft the legislation to avoid its constitutional infirmity.
Here was a legislator-lawyer personally rebuffed by the judiciary at a time when the Legislature, as a whole, was peeved at that branch. He had a receptive audience for his bill.
At one point, there was talk of merging Kopp’s bill with SB 1589 (Calderon, D-Los Angeles), a measure sponsored by the California Judges Assn. to make certain changes in §170.9. Metropolitan News-Enterprise, June 10, 1996, Page 5, "Parties Differ on Whether Bills on Judges' Honoraria, Gifts Will Be Merged."
That didn’t come about.
When Kopp’s bill hit the Assembly Committee on Appropriations, the bill analysis proclaimed:
"The Code of Judicial Ethics, promulgated under Constitutional authority granted by Proposition 190 (1994), prescribes the conduct of judges and candidates for judicial office. This bill closes a loophole by making gift and honorarium laws applicable to candidates for judicial office who are not sitting judges."
As to SB 1697 having no applicability to sitting judges, that proposition is doubtful fn. 5. As to the measure merely making applicable to judicial candidates provisions already applicable to sitting judges, at first blush, that appears to be so.
Sec. 89502’s ban on acceptance of honoraria (subd. (b)(1)) mirrors the provision in Code of Civil Procedure §170.9(g) that "No judge shall accept any honorarium." Sec. 89501(a) defines an honorarium as "any payment made in consideration for any speech given, article published, or attendance at any public or private conference, convention, meeting, social event, meal, or like gathering"; §170.9(h) contains the identical definition. Both §89502(b) and §170.9(i) permit moonlighting "in connection with the practice of a bona fide business, trade, or profession." The only difference is that judges, under §170.9(i), are given permission to charge money for marriage ceremonies they perform on weekends.
Sec. 89503’s $250 ceiling on gifts is akin to the $250 limit in §170.9(a). Under the former act, that amount is adjusted by the FPPC biennially to reflect inflation. (Subd. (f).) Under the latter act, it is adjusted biennially by the Commission on Judicial Performance. (Subd. (d).) fn. 6 Sec. 89503(e) excepts (1.) reimbursements of travel expenses and (2.) "[w]edding gifts and gifts exchanged between individuals on birthdays, holidays, and other similar occasions, provided that the gifts exchanged are not substantially disproportionate in value." Sec. 170.9 contains like provisions on travel (Subd. (b)(1)) and special-occasion gifts (Subd. (b)(2)).
Other exceptions to restrictions on gifts are contained in §82028(b) (informational materials, gifts that are refused or given to charity, family gifts, campaign contributions, inheritances, and personalized plaques and trophies worth less than $250.) Similar exceptions appear in §170.9(l), which adds free admission to bar association events. fn. 7
However, SB 1697, signed by the governor Sept. 28, 1996, does not incorporate the changes to Code of Civil Procedure §170.9 effected by Calderon’s SB 1589, which was signed into law 13 days earlier.
One of those changes is a clarification that a judge may receive payment for serving as a speaker at a Minimum Continuing Legal Education, to students, or to judges’ groups. Sec. 170.9(I).
The more significant change, however, was the removal of any ceiling on "[a] gift, bequest, favor, or loan from any person whose preexisting relationship with a judge would prevent the judge from hearing a case involving that person, under the Code of Judicial Ethics adopted by the California Supreme Court." Sec. 170.9(b)(3).
The absence of that exception was a constitutional flaw in §170.9, as originally enacted in 1994. A judge is quite unlike a legislator, who is has no obligation of recusing himself or herself from participating in a vote where the matter at hand affects the interests of close friends. Judges would be required under such circumstances to step aside. Code of Civil Procedure §170.1(a)(6)(C) requires recusal where "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." Failure of a judge to "disqualify himself or herself in any proceeding in which disqualification is required by law" is disciplinable by the Commission on Judicial Performance as a violation of Canon 3(E). (Also, an attorney proffering a gift not justified by a "personal or family relationship" with the judge would face discipline from the State Bar based on a violation of Rule 5-300(A) of the Rules of Professional Conduct.) To require a judge to turn down gifts from a person who is so close a friend that the judge could not hear any matter in which that person were an attorney or a party (without stipulation by the other side) serves no conceivable governmental interest, and thus would be lacking in substantive due process.
While that infirmity in §170.9 was removed by the Calderon bill, such a defect is present in §89503. It makes no arguable sense to restrict acceptance of gift by a judicial candidate where the gift comes from a person whose cause the candidate could not hear as a judge.
As set forth in footnote 1, it would appear from a reading of §89502 and §89503 that those provisions apply to all judicial candidates, including sitting judges. However, that interpretation is not prevalent. Assuming that judicial candidates who are judges are exempted, and that the only judicial candidates affected are therefore lawyers, an equal protection problem arises in two contexts:
1.) Judges would be allowed to accept gifts in unlimited amounts from friends whose causes would not come before the judge. Attorneys would be bound by the statutory $250 limit (actually $290, under adjustments by the FPPC based on inflation.) It is a political fact that those engaged in judicial campaigns have a difficult time raising funds since judges, unlike politicians in the other branches, are precluded from bestowing favors on contributors. Judicial campaigns are frequently funded largely with loans from the candidate to his or her committee -- loans which generally are not re-paid. Restrictions on gifts amount to limitations on the personal resources upon which the judicial candidate may draw. fn. 8 Any limits on gifts to the lawyer-candidate not also applicable to a judge-candidate results in disparate treatment of persons similarly situated. That judges could accept honoraria for conducting MCLE courses while it is nit clear that an attorney-candidate could do so raises another, though less significant concern.
2.) Where a judge-candidate violated §170.9, the penalties would not be monetary, but merely discipline (probably merely an advisory letter) from the Commission on Judicial Performance. For a lawyer-candidate who violated §89502 or §89503, there would be the prospect of these monetary penalties:
Sec. 83116: "When the [Fair Political Practices] Commission determines there is probable cause for believing this title has been violated, it may hold a hearing to determine if such a violation has occurred....[¶]When the Commission determines on the basis of the hearing that a violation has occurred, it shall issue an order which may require the violator to: [¶] ... (c) Pay a monetary penalty of up to two thousand dollars ($2,000) to the General Fund of the state." fn. 9
Sec. 89521: "Any person who makes or receives an honorarium, gift, or expenditure in violation of this chapter is liable in a civil action brought by the commission for an amount of up to three times the amount of the unlawful honorarium, gift, or expenditure."
This disparate treatment could hardly be said to serve any state interest.
Indeed, FPPC Chairman Ravi Mehta opposed the bill -- originally sponsored by the commission -- after it was amended to reinstate the exemption for judges. He warned that it could be found unconstitutional if challenged on equal protection grounds, noting that Proposition 73 had been invalidated by Judge Lawrence K. Karlton of the United States District Court for the Eastern District of California in part because it would have given incumbents an advantage over challengers. Metropolitan News-Enterprise, June 20, 1996, Page 6, "Panel Approves Bill to Regulate Judicial Candidates' Receipt of Gifts."
Karlton found in Service Employees v. Fair Political Practices, supra at 590 that a contributions-limitation scheme entailing fiscal-year cycles "favors incumbents against challengers" in violation of the Equal Protection Clause of the Fourteenth Amendment.
Stacking the deck in favor of incumbents was also the vice denounced in Gould v.Grubb (1975) 14 Cal.3d 661, which invalidated a city charter requirement that an incumbent’s name would go on the ballot ahead of challengers’ names.
In Gould, it was observed at 664 that the charter requirement created a "substantial advantage" for incumbents, requiring application of the strict scrutiny test. Gould recites at 670, that "in recent years both this court and the United States Supreme Court have had frequent occasion to reiterate that the ‘fundamental’ nature of the right to vote and the importance of preserving the integrity of the franchise require that the judiciary give close scrutiny to laws imposing unequal burdens or granting unequal advantages in this realm." Emphasis added.
Allowing judge-candidates access to funds or things of value to which lawyer-candidates are denied access entails an unequal advantage. Subjecting lawyer-candidates to monetary penalties to which judge-candidates would not be subjected entails an unequal burden.
Is the strict scrutiny test applicable? If the criterion were whether the burden or advantage in question were of such magnitude as to have a probable effect on the outcome of the election, strict scrutiny might not be appropriate. However, Gould specifies that the strict scrutiny standard requires a " ‘ real and appreciable impact’ on the equality, fairness and integrity of the electoral process." Under that criterion, the grossly inequitable treatment afforded the two classes of candidates -- lawyer-candidates and judge-candidates -- would justify utilization of the strict scrutiny test. Under that test, the question is whether "the classifications drawn are "necessary to achieve a compelling governmental interest." Id. at 672. (Emphasis in original.) Manifestly, such necessity is lacking.
If strict scrutiny were not applied, and the usual test were utilized, the question would be whether the disparate treatment bears "a rational relationship to a conceivable legitimate state purpose." Curtis v. Board of Supervisors (1972) 7 Cal.3d 942, 951-52. What legitimate state purpose could there possibly be in affording advantages to judge-candidates in judicial races over lawyer-candidates? Even under a reasonable relationship test, the statutory changes brought about by SB 1697 -- if interpreted as exempting judges, as candidates, from its application -- plainly fails to meet constitutional muster.
SB 1697 would limit gifts to judicial candidates from close friends whose cases the candidate, as a judge, could not hear (at least without informed consent of the other side). This is pointless, thus lacking in substantive due process.
If, as some would interpret it, the act exempts judges, in their roles as judicial candidates, then judge-candidates and lawyer-candidates are subject to disparate treatment, spelling out an equal protection infirmity.
Though initially conceived as a measure to keep judges in line, SB 1697, as enacted, constitutes a purposeless hindrance to lawyers seeking judgeships. Until invalidated, as it inevibitably will be, the measure is law.
1. References to §89502 and §89503 are to these Government Code provisions. Return to text
2. References to §170.9 are to this provision of the Code of Civil Procedure. Return to text
3. This is not to say that a lawyer, no matter what arena he or she might wander into, should be answerable to no authority other than the State Bar. If the lawyer became a fight manager and allegedly rigged a match, the lawyer would hardly be exempt from inquiries of the State Athletic Commission. If a lawyer ran for the Assembly against an executive of a pest control company and against an actor, it would not do to subject the lawyer solely to the authority of the State Bar, the exterminator to the authority of the Structural Pest Control Board, and the actor to the Screen Actors Guild. As candidates for the same post, all would be equally situated and equal protection would require application to all of a single set of standards. Application to all of these Assembly candidates of the provisions of the Political Reform Act and answerability of all to the Fair Political Practices Commission is entirely sensible. In entering a judicial race, however, a lawyer has hardly strayed from the area of law, as in assuming the role of a fight manager. And the lawyer would not be pitted against an exterminator or an actor. The lawyer is, in this context, seeking a post that is in the field of law and will run against others in that field; all candidates must qualify under Art. VI, §15 of the state Constitution: "A person is ineligible to be a judge of a court of record unless for 5 years immediately preceding selection to a municipal court or 10 years immediately preceding selection to other courts, the person has been a member of the State Bar or served as a judge of a court of record in this State...." Assuming, arguendo, that there is some actual need to bar lawyers running for judgeships from accepting honoraria or receiving gifts worth more than $250, a rational approach would be to promulgate a rule of professional conduct mimicking Rule 1-700 which renders the lawyer-candidate subject to the rule applicable to judges. The State Bar would enforce the rule with respect to lawyers, and the Commission on Judicial Performance would enforce it with respect to judges. Return to text
4. The judiciary had come "under an unprecedented attack by a legislature stung by Proposition 140," Los Angeles Superior Court Judge Gregory O’Brien wrote in the November-December, 1992 issue of the California Judges Assn. publication, California Courts Commentary, of which he was editor. "An Open Letter to the State Bar of California: Isn’t Judicial Independence Your Business, Too?" Reprinted, Metropolitan News-Enterprise, Dec. 9, 1992, p. 9. As evidence of the attack, O’Brien cited the Legislature’s passage of AB 1031, which would have raised judges' retirement contributions from 8 percent to 11 percent, and SB 1563, which would have reduced judicial retirement benefits; both measures, he noted, were vetoed by Gov. Pete Wilson. Ibid. In similar vein, then-California Judges Assn. President Michael Ullman observed in an address at the CJA’s 1992 convention that the courts were "under attack" by the Legislature. Metropolitan News-Enterprise, Oct. 6, 1992, p. 1, "Seitman Calls Ullman's Criticisms of State Bar `Silly.’" Ullman pointed not only to the proposed cut in pension benefits for new judges, but also to a proposed constitutional amendment, SCA 14, which would have barred the judiciary from exercising its inherent power to order funding of its constitutionally mandated functions, and a proposed 38 percent slash in the appellate courts’ budget. Ibid. It is noteworthy that Kopp, author of SB 1697, was a co-author of SCA 14. In testimony before the Assembly Judiciary Committee -- where the measure, which had been approved by the Senate, was killed -- then-Los Angeles County Bar Assn. President Richard Chernick asserted that the true purpose of the proposed ballot measure was to bar the Supreme Court from countering the 38 percent slash in the appellate courts’ budget already passed by both houses. Metropolitan News-Enterprise, Aug. 14, 1992, p. 3, "Opponents: Proposed Constitutional Amendment Aimed at Supreme Court Budget." Prop. 140 had slashed the Legislature’s budget by 38 percent. (The cut in the courts’ budget was whittled down to a much smaller one in light of a veto threat by Wilson.) Then-California Supreme Court Justice Armand Arabian was quoted in a magazine article as saying of the Legislature’s attitude toward the judiciary: "[T]his is no longer a Legislature doing the peoples' business. This is a gang out for retaliation. They consider themselves `homeboys' who have been evicted by the public. And so they are now going to take it out on whomever they can find. They want to throw concrete at our heads, if you want the apt analogy." Metropolitan News-Enterprise, Oct. 29, 1992, pp. 1, 5, "CJA Head Predicts More Court Budget Cuts." Return to text
5. The observation that the bill has applicability only to judicial candidates who are not sitting judges is in accordance with a common conception. However, this conception is not borne out by a reading of the statutes, as amended by SB 1697. Sec. 89502(a) provides that "No elected state officer, elected officer of a local government agency, or other individual specified in Section 87200 shall accept any honorarium." Similarly, §89503(a) decrees: "No elected state officer, elected officer of a local government agency, or other individual specified in Section 87200 shall accept gifts from any single source in any calendar year with a total value of more than two hundred fifty dollars ($250)." Sec. 87200 says, in relevant part, "This article is applicable to... judges...." Thus, both the bans on honoraria and receipt of gifts worth more than $250 would apply to sitting judges, absent a further provision exempting those particular office-holders. That exemption comes in subsection (d) of both code sections. The language in each is identical: "This section shall not apply to a person in his or her capacity as judge." Sec. 89502(b)(1) declares: "No candidate for... for judicial office... shall accept any honorarium." Likewise, §89502(b)(1) states: "No candidate for... judicial office... shall accept gifts from any single source in any calendar year with a total value of more than two hundred fifty dollars ($250)." Kopp’s bill added the words "judicial office." Thus, unless some succeeding provision expressly exempts judges from the provision, any judge who is a candidate for judicial office is covered by the provision. In this instance, subsection (d) does not create an exemption. It does not read, "This section shall not apply to a judge." Rather, it exempts only a judge "in his or her capacity as a judge," the only plausible reading being that this capacity is contradistinguished from the incumbent’s capacity as a candidate. Accordingly, the ban on honoraria and the $250 ceiling on gifts apply to any judicial candidate, including a judge, but does not apply to a judge who is not a candidate. Indeed, the next-to-final bill analysis, produced when the bill was heard before the Assembly Committee on Elections, Reapportionment and Amendments on Aug. 6, 1996, remarked: "If the intent of the author is to exclude sitting judges from PRA, the author or committee may wish to add clarifying amendments...." Whether that was Kopp’s intent or not, the wily solon succeeded in mollifying the CJA by creating the impression that such had been accomplished by new language in his bill. Whatever Kopp’s intent, the statutes, as reshaped by his bill, do appear unambiguous, leaving no room for interpretation. Judges who, as candidates, violate the ban on honoraria or the $250 gift limit are subject to penalties under the Political Reform Act, as well as discipline by the Commission on Judicial Performance for violations of analogous provisions of §170.9. Return to text
6. Since upward adjustments started in 1993 under §89503(f) and in 1997 under §170.9, the ceiling under the PRA is slightly higher. As of 1998, the PRA ceiling is $290, according to a FPPC spokesperson, while the limit under §170.9 is $260, according to Henley. References are made to the $250 figure, appearing in the two statutes, for sake of convenience. Return to text
7. Added in 1995 by S.B. No. 353 (Alquist D-San Jose). The bill also clarified that "gifts" did not include informational materials such as video tapes, cassettes and discs, and that outside income could be received from any publisher, not just a "legal publisher," as stated in the original statute. Return to text
8. Things of value which are intended for use in the campaign would, of course, be "campaign contributions" which are, under §82028(b) removed from the category of gifts subject to the $250 limitation. No contribution limit is in effect. Proposition 208 contribution limits were invalidated by the United States District Court for the Eastern District of California (Metropolitan News-Enterprise, Jan. 7, 1998, Page 1, "Judge Strikes Down Voter-Approved Campaign Contribution Limits"). The pre-Proposition 208 version of Government Code §85301(a) created a $1,000 per-fiscal-year limitation on contributions to judges, but this provision, added by Prop. 73, was invalidated in Service Employees v. Fair Political Practices, supra. Return to text
9. This section was amended by Proposition 208, § 28, approved Nov. 5, 1996, eff. Jan. 1, 1997, to substitute "five thousand dollars ($5,000) per violation" for "two thousand dollars ($2,000)." That proposition was judicially invalidated (based on the constitutional infirmity in another section) on Jan. 6, 1998 in California Pro-Life Council Political Action Committee v. Scully, CIV S-96-1965. Return to text