The State Bar seeks public comment on proposed amendments to State Bar Rule 7.40 Regarding the Assignment of Judicial Nominees Evaluation Commissioners to investigation teams.
Deadline: July 7, 2022
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
Government Code section 12011.5(a) requires that when the governor prepares to fill judicial vacancies, the names of candidates for the judgeships be submitted “to a designated agency of the State Bar of California…for evaluation of their judicial qualifications.” The Board of Trustees created the Commission on Judicial Nominees Evaluation (JNE) to fulfill this function. State Bar Rule 7.40 requires that the chair of JNE appoint a team of commissioners, one of whom is designated as lead, to investigate candidates and report to the commission. For candidates for the Court of Appeal or Supreme Court, a team of three or more commissioners must be appointed, one of whom is a public member.
Currently, there are 38 JNE commissioners, four of whom are public members. According to the most recent Judicial Vacancy Report, as of May 1, 2022, there are 11 pending judicial vacancies in the appellate courts, and the governor’s office reports that they expect several more in the coming year with impending retirements.
The governor’s office provides the JNE Commission with a list of candidates for evaluation every 90 days. Given the size of the commission, and the in-depth nature of the investigations, the commission typically has the capacity to evaluate 25-30 judicial candidates per cycle. The commission is relatively limited in its ability to evaluate appellate court vacancies in accordance with Rule 7.40 given the small number of public members on its roster. In a typical cycle the commission brings on pro tem members (former commissioners who volunteer on a particular investigation) to meet the public member requirements. Even with these volunteers, the commission typically only evaluates two to three candidates for the Courts of Appeal per cycle.
At this rate, it would take approximately one year to evaluate 11 candidates for the Court of Appeal to fill the existing vacancies, and longer as additional vacancies emerge due to expected retirements in the coming year.
In light of this, in consultation with the governor’s office, staff recommends amending Rule 7.40 to add the term “to the extent practicable” to the requirement that investigative teams evaluating appellate candidates must contain a public member. This would reiterate the importance of public voices as the preferred composition of investigative teams while giving the commission flexibility to evaluate more appellate candidates per cycle if necessary.
Staff also recommends that subsection (A) be amended to clarify that “at least” one of the members of the investigating team for superior court candidates be a licensee of the State Bar.
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Board of Trustees
July 7, 2022
Proposed Amendments to State Bar Rule 7.40 (Assignment of Judicial Nominees Evaluation Commissioners)