Group seeks input on updating judicial bias rule

A Judicial Council work group began accepting suggestions last week on how to improve Standard of Judicial Administration 10.20, which was last substantively amended more than 20 years ago and recommends that state courts form local committees to tackle bias. The work group will accept early comments until Feb. 12.

Comments can be submitted to standardonbias@jud.ca.gov.

The move is one of the first by the Judicial Council Work Group to Enhance Administrative Standards Addressing Bias in Court Proceedings, which was formed by Chief Justice Tani G. Cantil-Sakauye in November.

The state courts have spearheaded a series of efforts in recent years to address discrimination, harassment, and retaliation -- including Rule 10.351, which the Judicial Council adopted in January 2020 and requires each court to update its policies on how court employees can prevent, report, and resolve complaints related to these issues.

But last summer, a group of employment attorneys pointed to a gap in the efforts, which extend protections to court employees but not to attorneys who face discrimination, harassment and retaliation at the hands of judicial officers. These attorneys weren't technically employees of the court, they said, but the court was their workplace, too. And it wasn't until the courts forged recent efforts to address this gap that some said they felt confident enough to speak openly about their experiences with a phenomenon they've faced as long as they've been practicing law: bias by judicial officers.

Some of the court's efforts to address this issue followed a survey last July by the Daily Journal and members of the California Employment Lawyers Association, which found that a handful of the state's 58 superior courts had established local committees on bias pursuant to the decades-old Standard 10.20 that Cantil-Sakauye's work group is now seeking to update.

Standard 10.20 was last substantively amended in 1997, and the work group formed in November is one of the efforts attorneys say have encouraged them to speak more openly about judicial bias. Other efforts include courts -- including those in San Bernardino, Monterey, and Yuba counties -- confirming last summer their plans to launch bias committees pursuant to Standard 10.20. Last November, the state Supreme Court's Committee on Judicial Ethics Opinion additionally issued an opinion that clarified when a supervising judge can disclose the details of a complaint to a trial court judge, in cases where the trial court judge is the subject of the complaint.

"People are feeling more comfortable to address the very topic, even publicly," said Beth Mora, who represents workers at her own firm, Mora Employment Law. In an interview in December, Mora said at a recent event she attended, several attorneys discussed their experiences with judicial bias even though a superior court judge was present. She also said she has been approached by female attorneys across the state who are looking to publish writings about their experiences with judicial bias.

Mora first discovered Standard 10.20 when she was researching how to file complaints against judges, as a member of the California Employment Lawyers Association's committee on bias. The local bias committees that Standard 10.20 recommends courts establish are tasked with developing and maintaining an informal process for fielding complaints of bias in the courtroom, which Mora believes is necessary because in most courts, the current procedure for attorneys to voice concerns about judges -- speaking to the court's presiding judge -- is typically too vague to guarantee complainants protection from retaliation, she said.

Following its July survey, the Daily Journal found that among the county courts that did have committees on bias last year, most did not hold meetings until they received a complaint. The Daily Journal also found few attorneys knew the committees existed.

"I'm glad to see there's a conversation going," said Wendy E. Musell, of counsel with Levy Vinick Burrell Hymans LLP and a past president of the California Employment Lawyers Association. "These changes have needed to happen for decades if not longer."

Merrill Balassone, a public affairs representative for the Judicial Council, said in late December that members of the work group were unable to comment for this story because the group had only recently been formed.

Mora said she is pleased Cantil-Sakauye appointed two female attorneys -- Gretchen Nelson of Nelson & Fraenkel LLP and Rachel W. Hill of the Law Office of Rachel Hill and Hill Mediation Services -- to the work group that will update Standard 10.20. But she suggested attorneys who specialized in employment law also get seats at the table. "As this is specifically concerning bias based upon protected classifications noted within Rule 10.20, appointing attorneys in relation thereto, including attorneys who have been specifically working on this matter, is crucial to a meaningful process and remedy of the matter," she said.

Musell agreed. "While I'm very happy to see that there is action starting to be taken and that there's analysis of these guidelines and directives, I feel like [the court] will definitely benefit from allowing people who are experts in this field to share with them what it's like on the ground for attorneys and litigants who are affected by discrimination and the legal process," Musell said.