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April 1998
Civil Justice Association of California
Table of Contents
Los Angeles County Judicial Contributions
Los Angeles Judges 1994 Election Results
Los Angeles Judges 1996 Election Results
San Francisco County Judicial Contributions Summary Data
San Francisco Judges 1996 Election Results
San Diego County Judicial Contributions Summary Data
San Diego Judges 1994 Election Results
Sacramento County Judicial Contributions Summary Data
Supreme Court and Appellate Courts
Appendix C Fair Political Practices Act
Appendix D The California Political Reform Act of 1996
The California judiciary is believed to be the largest in the free
world. While the California Constitution provides for elections to
the municipal and superior courts, most judges initially take office
via gubernatorial appointment to vacant or newly created positions.
There is not a similar provision for elections of appellate or
Supreme Court justices, however, these justices stand for retention
elections.
By Comparison with many other states, California's process for selecting and electing judges generally wins high marks. However, in recent years concern has been expressed over the rising cost of elections. In this study Civil Justice Association of California focused on contributions to superior court justices in four counties: Los Angeles, Sacramento, San Diego and San Francisco. Civil Justice Association of California examined contributions during the period of 1993 to 1996 and analyzed amounts, sources and trends of contributions.
Contribution sources were divided into 3 major categories: candidate contributions to their own campaigns, attorney/ law firm contributions, and non-attorneys (including business other than law firms and individual attorneys). Recognizing the continuing interest in the high level of political contributions by plaintiff trial lawyers nationally and in California, Civil Justice Association of California further divided the attorney contributions into "plaintiff attorneys" and "other attorneys".
A final note worth mentioning is the difficulty in identifying
contributors. In two races, the candidate failed to file contribution
reports with the Secretary of State as required by law. Additionally,
candidates omitted the occupations of many contributors. While the
information was eventually obtained, it is becoming increasingly
difficult to identify the true source of
contributions.
Part I. Contributors
Candidate Contributions to Their Own Campaigns
Civil Justice Association of California found that 51% of all funds raised came from the candidates
themselves. Candidates contributed an average of $82,127 per race to
their own campaigns. In one case, a candidate contributed $176,093 to
her own campaign.
Total Attorney Contributions
Individual attorneys and law firms comprised the largest group of
contributors to judicial elections. In the four year period examined,
attorneys and firms contributed 49% of identifiable, non-candidate
contributions.
Plaintiff Trial Lawyer Contributions
Plaintiff attorneys and their firms comprise the largest sub-group of
attorney contributors to judicial candidates. In the period examined,
64% of all contributions from attorneys came from plaintiff attorneys
and their firms. As a percentage of all non-candidate contributions
to candidates, plaintiff trial lawyer contributions ranged from 8% in
San Diego County to 40% in San Francisco County and averaged 24%.
Other Contributions
Other contributions came from a variety of sources including other
judges, officeholders, broad based organizations, political parties,
labor organizations, individuals, businesses and law enforcement. In
the four year period examined, other contributors accounted for 51%
of identifiable, non-candidate contributions.
Part II. Increase in Contribution Totals
While there was not a significant change in the number of
contested elections between 1993 and 1996, there has been a
considerable rise in contribution totals to candidates in Superior
Court races. For the period of 1993-1996, combined contribution
totals exceeded $2.5 million in superior court races. The combined
counties averaged $160,626 per race. This is an increase of 47% over
the period of 1989-1992 which averaged $109,174 per
race.
Research shows that in general judicial elections follow the same
themes as legislative elections: the candidate who raises the most
money, wins. In 87% of the races (14 of 16), the candidate with the
most money won the election.
Across the country, attention on civil justice reform has expanded
from legislatures to the courts. In some states, courts are hearing
appeals in cases involving recently-enacted tort reform measures.
While in other states, the judiciary is receiving attention because
of numerous highly contested and costly elections, frequently at the
appellate levels.
According to a study by Victor Schwartz, General Counsel to the American Tort Reform Association, in the past decade state courts have ruled more than 180 times on the constitutionality of tort reform statutes. Of those, more than 60 statutes have been overturned.
In California, courts over the past 20 years have generally upheld major liability law enactments, extending from the Medical Injury Compensation Reform Act of 1975 (MICRA) through comparative fault among defendants, enacted by the voters through Proposition 51 in 1986.
By comparison with many other states, California's process for selecting and electing judges generally wins high marks. However, this does not mean all is well with judicial elections in the state. In a 1996 Los Angeles Times interview, California Supreme Court Chief Justice Ronald M. George stated his concern, indicating there is a "trend toward more and more expensive judicial races in contested elections." And the private, non-profit California Commission on Campaign Financing (CCCF) documented a trend of rising costs and diminishing information in judicial campaigns ("The Price of Justice," a 1995 study of Los Angeles County judicial races from 1976 to 1994). The Commission observed that:
"Candidates are forced to solicit campaign contributions from lawyers and litigants, a contributor base with a vested interest in the outcome of the candidates' judicial decisions. This increases the appearance or actuality of bias in the decision-making process."
Contributions and spending in California judicial races are not tracked and compiled with the regularity and completeness that has been the case with races for the Legislature and statewide Constitutional offices. The most detailed information Civil Justice Association of California was able to locate is contained in the above-mentioned "The Price of Justice" study which looked only at Los Angeles County (where, nevertheless, a large percentage of the state's trial court fund-raising and campaign spending occurs).
The California judiciary is believed to be the largest in the free world. It includes 1,580 judicial positions consisting of:
With a judiciary this size, it was not feasible to completely examine every actual or potential election in each district of every county over a period of years. After initial review of several counties, Civil Justice Association of California discovered that few contested races occur in mid-to-small sized counties and thus choose to focus its study on Superior Courts in four large, but geographically separate, counties: Los Angeles, Sacramento, San Diego and San Francisco for the contribution reporting periods of calendar 1993 through calendar 1996.
The Supreme Court and the Courts of Appeal were also examined for contributions to justices who stood for retention election. The records showed only contributions to appellate judges in the Second Appellate District (Los Angeles) where one central committee controlled all the contributions made to the sitting justices.
Data for this survey was obtained from the Center for Governmental Studies in Los Angeles, the Secretary of State's Political Reform Division in Sacramento and from each county's elections offices. Our appreciation is extended to the staff in each of these offices who helped gather the information. They were especially patient in identifying and retrieving reports that are rarely utilized and not always readily available.
This study could not have been completed without the solid work of Jeffrey Sievers, Civil Justice Association of California Research Assistant and third year student at the University of the Pacific McGeorge School of Law.
I. Judicial Election Process in California
Under California law, a candidate for a judgeship must be a member of the bar for at least five years prior to being appointed or elected for a municipal court judgeship or ten years prior to being elected to a superior court judgeship.
Before a person can become a Supreme Court justice or an Appellate Court justice, the Governor must submit the candidate's name to the Judicial Nominees Evaluation Commission (JNEC), consisting of public members and lawyers. The commission reviews the candidate's background and qualifications, with community input, and provides its evaluation of the candidate to the Governor. The Governor then reviews this evaluation and if he or she feels the person qualified, officially nominates the candidate, whose qualifications are subject to public comment before examination and review by the Commission on Judicial Appointments.
The Commission on Judicial Appointments consists of the Chief Justice, the Attorney General, and a senior Presiding Justice of the Courts of Appeal. The Commission on Judicial Appointments must then confirm or reject the nomination. Only if confirmed does the nominee become a justice.
The justice is then subject to retention elections in accordance with California law. A retention election is the process where the voters confirm by a "yes" or "no" vote whether the justice shall continue for another term. In this type of election, the justice does not run against another judicial candidate. The retention election process only applies to justices of the Supreme Court and the Courts of Appeal.
While the Constitution allows the election of judges to the bench for municipal and superior courts, most judges initially arrive at the bench via appointment by the Governor. In the typical scenario, a judgeship is vacant prior to an election. The Governor appoints a judge, subject to review by the JNEC and if an appellate judicial candidate, approval by the Commission on Judicial Appointments. The judge holds the position until the end of the term at which point the judicial candidate must run for reelection. Superior and municipal court judges may have contested races if another candidate decides to run for the same office.
The law provides that in any county in which only the incumbent has filed for reelection, the name of the candidate does not appear on the ballot. If the name is not on the ballot in accordance with the code, the election official shall declare the incumbent reelected.
In races where more than two candidates have filed a declaration of intent, all candidates are submitted for approval to the voters at the primary election. If any candidate receives a majority of the votes at the primary election (a majority is 50% plus one vote) they are declared the winner. There is no subsequent race in the general election. If at the conclusion of the primary election none of the candidates receive a majority of the votes, the two candidates that received the greatest shares of the votes run in the general election. The candidate who receives the greatest number in the general election is declared the winner.
II. Reporting Requirements
The law that governs campaign contribution and spending reporting requirements is set forth in the Political Reform Act (PRA) enacted in 1974. Under the law, reporting requirements apply to both receipt of contributions and campaign expenditures.
A. Reporting Campaign Contributions
The PRA requires that contributions received by judges of $100 or more be identified on semi-annual and pre-election campaign disclosure statements. The law requires candidates to include the name, address, occupation, employer, and date of contribution. (The information is reported on Form 490 provided by the Secretary of State. It should be noted that most reports reviewed by Civil Justice Association of California did not include all the required information, especially identification of the contributor's occupation or employer.) Contributions from the candidate or from other candidates are also covered by the same reporting requirement. If the amount is less than $100, the aggregate total of less than $100 contributions must be reported.
Contribution reports appear to be required for any reporting period in which a contribution is received, even in cases where an incumbent recipient is not challenged, his or her name does not appear on the ballot, and no contest occurs.
B. Reporting Campaign Expenditures
While the campaign expenditures of judicial candidates is beyond the scope of this study, a brief description of the expenditure reporting requirements is appropriate.
A candidate for a judicial position is required to report all expenditures made on behalf of the campaign. If the
expenditure is $100 or more, the candidate must include the name,
address, company, amount spent and what was purchased by category. If
the amount is less than $100, the aggregate total of less than $100
expenditures must be reported.
A judge is not required to file a semi-annual campaign statement if contributions are not received and if the only expenditures made are from the judge's personal funds to other candidates or committees and total less than $1000. The judges are to report the information to the Secretary of State and to the clerk of the county with the largest number of registered voters in the districts affected.
C. Reporting Independent Expenditures Made to Benefit a Candidate
If a candidate or committee has made independent expenditures totaling $500 or more in a calendar year to support or oppose a candidate, the maker of the expenditure must file independent expenditure reports. The reports must include the information of the contributor ( name, address, occupation), the identity of the candidate being supported or opposed and a brief description of the expenditures made. The information must be filed where that candidate files his or her reports.
III. Contribution and Expenditure Limits
Proposition 208 -- "The California Political Reform Act of 1996"
Proposition 208 was a statewide initiative passed by the voters in the 1996 general election. It was designed to limit contributions and spending, but did not change contribution reporting requirements for any candidate.
Although Proposition 208 was presented as a reform of legislative and statewide office elections, it applied to all judicial elections as well.
However, at the time of this study's publication, Proposition 208 was not in effect, having been enjoined in its entirety on January 6, 1998. It is unlikely any of its contribution limit provisions will apply in 1998. Its long term fate is difficult to predict.
I. In General
In the four counties examined, Civil Justice Association of California identified 16 contested Superior Court elections in 1994 and 1996 in which candidates reported a total of $2,570,009 in campaign contributions. There were 12 races in Los Angeles County, two in San Diego, two in San Francisco, and none in Sacramento. "Outside" contributions (contributions other than funds loaned or given by the candidate) averaged $78,499 per race in elections where contributions were reported. Contributions by the candidates to their own campaign averaged $82,127.
County total contributions for the period ranged from a high of $2,312,972 (averaging $192,747 per race) in Los Angeles to a low of $45,675 in San Diego County (averaging $22,837 per race). San Francisco contributions totaled $211,362 in two races. However, one of the races had contributions of only $5,665.
These totals may understate total contributions in that they may not include funds raised by an incumbent judge who was never challenged and therefore re-elected automatically without his or her name appearing on the ballot. In order to obtain this data it would be necessary to examine every incumbent judge for campaign contributions. Civil Justice Association of California examined candidates in contested races only. According to the California Commission on Campaign Financing (CCCF) Los Angeles study, candidates often hire a campaign consultant to "demonstrate their seriousness and deter opponents and their contributors."
Presumably candidates would also generate contributions in advance of a challenge to fund campaign mailings and make other shows of strength to would-be challengers. No study is known of contributions to non-challenged candidates in California trial courts. A 1988 Illinois study is reported to have found that it is not uncommon for attorneys to contribute to judicial candidates who are running unopposed or who face little serious opposition, suggesting that these attorneys hope to curry favor with the judges (Nicholson and Weiss, The Price of Justice: The Funding of Judicial Campaigns in Cook County).
II. Sources of Contributions
Contribution sources are broken into three major categories ‹ attorneys, non-attorneys, and the candidate. Recognizing the continuing interest in the high level of political contributions by plaintiff trial lawyers nationally and in California, Civil Justice Association of California further divided the attorney contributions into "plaintiff attorneys" and "other attorneys."
Identifying the occupation of the individual contributor often required follow up research. As noted earlier, although campaign reporting law requires candidates to identify contributors' occupations on the contribution report, this information is frequently omitted (a phenomenon also encountered in contribution research in legislative races). Plaintiff attorneys were identified by matching attorney and firm names with advertisements and utilizing practice profile information obtained from the Lexis® database.
Further classifications in the report include a category of
"unidentifiable contributors." These are contributors who gave less
than $100 and are not required to be specifically identified by
candidates in their reports. Additionally, some tables include the
phrase "contribution report not available." Disclosure statements may
not be available for several reasons: candidates may not have raised
or spent amounts triggering the reporting requirements ($1000), they
may not have filed despite exceeding these amounts, or the secretary
of state's office may have misplaced a candidate's statements. Where
the reason is known, it is identified.
A. Candidates'
Contributions and Loans to Their Own Campaigns
In reviewing contested Superior Court elections in 1994 and 1996, Civil Justice Association of California found 51% of all funds raised came from candidates themselves. The highest contribution to their own campaign was $176,093. In Los Angeles, candidates averaged $101,079 per race of loans to their own campaigns. In most cases, the loans were ultimately forgiven and the debt removed from the committee.
The earlier CCCF study found that in Superior Court campaigns, candidates themselves contributed 46% of all the funds they raised. The CCCF study observed that some judges "end their campaigns in substantial debt and are forced to continue raising money while in office......The pressure on incumbent judges to solicit, raise, and then pocket campaign contributions to repay personal debts creates significant problems of the 'appearance' of -- to say nothing of actual opportunities for -- biased or corrupt rulings."
B. Contributions from Attorneys and Law Firms
The CCCF study found that during the period studied, attorneys made nearly half (45%) of the "outside" (non-candidate) contributions in Superior Court races.
In Civil Justice Association of California's study, attorneys contributed 48% of the outside contributions in Superior Court elections. Trial attorney contributions made up 64% of the total attorney contributions and 31% of the total non-candidate contributions.
The CCCF study contrasted attorney contributions with business contributions in judicial races, noting that "business sources contribute two-thirds of all the money to Los Angeles County supervisorial campaigns; in county superior court races, they contribute just 8% of the total outside contributions."
The Commission report also observed that attorney contributors appear to be most active in more competitive open seat races, perhaps "because the races are more competitive and more uncertain. In addition, some attorneys with their contributions may simply be taking prudent action, attempting to indicate 'support' for a potential judge that they one day may appear before."
The CCCF detailed the problem of attorney financing of judicial races as follows:
"Not surprisingly, a large percentage of financing of judicial campaigns comes from lawyers and law firms -- the very people who conduct their business in judicial chambers. Clearly, lawyers who try cases have the most at stake in who sits on the bench and how the judges feel towards them. Such lawyers are the only group in society which deals with judges on a continual basis. The success of trial lawyers depends largely on their ability to gain favorable rulings. It is inevitable that lawyers, especially those who frequently appear in a judge's courtroom, will feel pressure to contribute to the judge's reelection campaign or, at the very least, not to offend the judge by contributing to an opponent. The dependence of judicial candidates on this contributor base is a double-edged sword: lawyers may feel compelled to contribute to judicial campaigns; and judges may feel a sense of obligation to their contributors. Thus the flow of money between lawyers and judges gives the impression that justice is for sale."
III. Trend toward Contested Elections
The counties reviewed do not show a trend one way or the other in the frequency of contested elections. The number of contested elections per county are as follows:
| Los Angeles | 1988 7 superior | 6 municipal |
| 1992 3 superior | 4 municipal | |
| 1994 7 superior | 9 municipal | |
| 1996 6 superior | 10 municipal | |
| San Francisco | 1994 0 superior | 0 municipal |
| 1996 2 superior | 1 municipal | |
| San Diego | 1994 2 superior | 0 municipal |
| 1996 0 superior | 2 municipal |
IV. Increase in Contribution Totals
Costs of communicating to the voters through the media, especially in contested races, are increasing every election cycle. In 1986, television and radio ads during the final week before the retention election cost former Chief Justice Rose Bird $1 million. Since then, the cost of slate mailers, newspaper advertisements, radio and television spots have all increased. Consequently, judges are forced to raise greater contributions in order to compete.
The effect of increasing campaign costs is, naturally, to put more
pressure on candidates. As the CCCF summarized the situation in its
1995 study:
"Judicial candidates are often forced to engage in a pressured election year search for money, asking friends, colleagues and attorneys (who may one day appear before them) to make campaign contributions." "When the cost of campaigning for judge rises, the premium for campaign contributions similarly rises. This can be cause for alarm. Campaign contributors, especially those who make large contributions, become increasingly important players in judicial campaigns. Judicial candidates desperately need these campaign contributions; otherwise, the candidates themselves must put up more of their own money or risk election defeat. The fact that judges and judicial candidates are obliged to solicit campaign contributions raises the spectre of whether they feel a sense of obligation to any of the contributors in return."
V. Effect of Contributions on Elections Outcomes
As in the case of legislative and statewide races, money produces wins in judicial elections as well. Reviewing data on Los Angeles County Superior Court contested elections from 1976 to 1994 and Municipal Court contested elections from 1988 to 1994, the CCCF concluded that "the more a candidate spends on these methods [slate mailers and other advertising], the greater that candidate's chance of victory at the polls."
The CCCF found that in Superior Court contests, winners outspent losers by more than 2-to-1, $56,000 to $26,000; in open seat races, winners outspent losers by 4-to-1, $128,000 to $32,000.
A 1989 survey by the California Judges Association found the 69% of the judges surveyed believed that campaign money is "necessary to victory" -- placing it higher than incumbency as an election factor.
The figures Civil Justice Association of California found in the 1994 and l996 races bear out these
earlier observations. Winners outspent losers in 14 of the 16
contested races examined.
