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MCLE Self-Assessment Test

Board approves stricter JNE rules

The panel that evaluates nominees for the bench, under scrutiny ever since the “not qualified” rating of a judicial candidate was leaked last year, will operate under revised rules designed to both improve and tighten their procedures. The State Bar Board of Governors last month approved amendments to four rules and will seek statutory changes to add “not qualifed at this time” as an additional rating for potential judges.

The amendments also will expand the size and diversity of a review committee that can reconsider a candidate’s rating, shorten the time for review and prohibit disclosure of a rating that is being reevaluated. The changes were approved unanimously.

The Commission on Judicial Nominees Evaluation (JNE) came under fire last year following the unauthorized disclosure of a “not qualified” rating for former state Sen. Charles “Chuck” Poochigian, who now sits on the Fifth District Court of Appeal. Gov. Schwarzenegger cited the leak in October 2009 when he vetoed the bill to authorize collection of bar dues for 2010. Then-bar president Howard Miller appointed a committee to determine the source of the leak and another group to review JNE rules and procedures.

JNE is made up of attorneys and members of the public who evaluate candidates for judicial appointment by the governor. The ratings and information gathered during the investigation are not made public, unless the governor appoints an individual JNE rates as not qualified. JNE makes a report at the public hearing of the Commission on Judicial Appointments for nomination for the Court of Appeal or the Supreme Court regardless of the JNE rating.

Candidates for the bench receive one of four ratings after evaluation by JNE: exceptionally well-qualified, well-qualified, qualified and not qualified.

The board approved the addition of “not qualified at this time” as another rating to “help mitigate a candidate’s feeling that they were being permanently judged as ‘not qualified,’” according to the bar’s recommendation. In addition, the new rating would provide a “useful tool” to tell candidates they received good feedback but perhaps do not possess sufficient experience to receive a higher ranking at the time they are under consideration. Because the ratings are statutory, the State Bar will prepare and submit amendments to the legislature in order to make the change.

Under the new rules:

  • The bar president will be required to appoint an investigative committee within seven days of any alleged breach of confidentiality. According to the task force proposal, the change “would reassure stakeholders that the State Bar takes such allegations seriously.” Although JNE deliberations and ratings already are confidential, the amendment will require quick appointment of an investigative group.
  • If a candidate requests reconsideration of a not qualified rating, that would be undertaken by a review committee that is bigger and more diverse than the current three-person panel. The proposal envisions a “more balanced and impartial” review group.
  • A not qualified rating can be rescinded if it is not supported by sufficient evidence. The proposal offers an example where a candidate is rejected on the basis of one or two negative comments.
  • A candidate may request reconsideration of a rating within 30 days rather than 60 days.
  • Although the bar has discretion to disclose a not qualified rating if the governor appoints someone with that rating, it will not be disclosed if the candidate seeks reconsideration.
  • JNE commissioners who complete their term must transfer all electronic records in their possession to the State Bar and delete any records from electronic devices not issued by the bar.