FBANC Submits Public Comment to Amendments to California Rule of Court 10.20 on the Elimination of Bias
The Filipino Bar Association of Northern California (FBANC) submitted public comment to amendments to California Standards of Judicial Administration, standard 10.20 (Court’s duty to prohibit bias). We invite members to use the FBANC submission below as sample language for any public comment you wish to submit here by end of business day today, June 25.
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Dear Judicial Council Rules Committee and Work Group to Enhance Administrative Standards Addressing Bias in Court Proceedings:
Re: Proposal SP21-03, Do Not Agree With Proposed Changes
The Filipino Bar Association of Northern California (FBANC) opposes the Work Group’s proposed changes to California Rules of Court, Rule 10.20, Court’s duty to prohibit bias. In November 2020, the Chief Justice of California appointed the Work Group to identify improvements and proposed amendments to Rule 10.20. The result: one central proposal is the elimination of the local bias committees in favor of obligating courts to direct complainants to existing complaint resolution processes. FBANC opposes these proposals for the following reasons.
Rule 10.20 imposes a duty on California courts to establish a local bias committee staffed by diverse members of the local bar community. One of the critical functions of the local bias committees is to accept and resolve complaints of bias in courts. Rule 10.20(c)(d), for instance, requires that courts have “[m]inimum components of a complaint procedure.” Although it came to light in spring 2020 that nearly all of the Superior Courts in California were out of compliance with California Rule of Court 10.20(c)(d), the Work Group has proposed to eliminate the complaint procedure. This proposal is inexplicable in light of the fact that such a rule has never been widely adopted and effectively implemented.
The Work Group asserts that eliminating the local bias complaint structure is preferable to strengthening Rule 10.20(c)(d). According to the Work Group, other existing complaint resolution processes renders redundant the local bias committee required under 10.20(c)(d). Not so. Even the annual reports by the Commission on Judicial Performance show that a complaint filed with their body is in fact no resolution at all. Rather, a complaint to such a body is almost always likely to be dismissed without an investigation. And even in the rare instance where a complaint is actually investigated, the complaint is shortly dismissed without any meaningful resolution for the complainant or changes to courtroom conduct. See Commission on Judicial Performance 2020 Case Statistics and Commission on Judicial Performance, “Weaknesses in Its Oversight Have Created Opportunities for Judicial Misconduct to Persist”, Auditor of the State of California, April 2019, Report 2016-137.
Another example of this proposal’s shortcoming is the elimination of Rule 10.20(e)(7). This provision provides guidance to each local committee on bias because it clearly identifies which groups are protected and what kind of conduct is reportable. As it stands, complaint procedures apply to “incidents of bias whether they relate to race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status.” Eliminating this clear and specific language in favor of merely ensuring that “court users can access information regarding how they can submit complaints regarding bias” confuses rather than clarifies. Consequently, the Work Group’s proposals must be rejected.
In light of the lack of viable alternatives, Rule 10.20 should be strengthened, not weakened. Eliminating the minimal procedures and approving what the Work Group proposes, however, weakens Rule 10.20 in its entirety.
One example of how Rule 10.20 may be strengthened is by ensuring confidentiality to potential complainants. The Work Group proposes as another alternative to the local bias committee the fact that “courts have developed robust procedures for addressing such complaints.” For instance, in many courts, “complaints against judicial officers . . . are made to the court’s presiding judge.” This is not enough. The purpose of Rule 10.20 is to establish a neutral third-party composed of disinterested attorneys from the community. Complainants must feel confident that even though they may file a complaint of bias about a presiding judge or their staff in connection with a present case, they are not risking their client’s interest, nor their own reputation before the judiciary. Aside from failing to shield complainants from potential retaliation and other adverse actions, it is not in the spirit of Rule 10.20 to leave complainants relying on presiding judges to accept complaints and to regulate themselves regarding their own biases.
In short, FBANC proposes that the Rule Committee reject these proposals. Instead, the Rule Committee may consider re-constituting the Work Group. FBANC proposes that amendments to Rule 10.20 be conducted with a Work Group comprised of civil rights attorneys, employment attorneys, and members of diversity bar associations, if possible. FBANC would encourage this reconstituted Work Group to identify proactive measures for eliminating bias in the courts and in court interactions. Court personnel, for instance, should have clearer guidance and authority in prohibiting and preventing bias in courts and in interactions with the court. The importance of eliminating bias in the courts demands that the Rule Committee approach this with care, respect, and inclusion of appropriate voices.
Thank you for your consideration of public comment.
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Contact FBANC Membership Co-Director Bonifacio Sison bonifaciosison@fbanc.org and FBANC President Jennifer Sta.Ana jenniferstaana@fbanc.org for more information.
About FBANC
Established in 1980, FBANC is an organization of attorneys, judges, and law students dedicated to serving the Filipinx and Filipinx-American community. Through the volunteer work of its members, including lifetime members, FBANC offers various service programs, including regular, free legal clinics, professional development programs for attorneys, and mentorship for law students and young attorneys. The organization also provides a voice for and advocates on behalf of Filipinx and Filipinx-American interests in various forums.