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    Fundamental Rules and Guide for Examining Issues of Disqualification and Disclosure. A. Grounds for Disqualification for Trial Judges. B. A Guide for Examining Issues of Disqualification and Disclosure. C. Giving Notice Concerning Disqualification and Providing Reasons. D. Late Discovery of Grounds for Disqualification. E. Waiver of Disqualification. F. Revoking a Disqualification.

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    Fundamental Rules and Guide for Examining Issues of Disqualification and Disclosure. A. Grounds for Disqualification for Trial Judges. B. A Guide for Examining Issues of Disqualification and Disclosure. C. Giving Notice Concerning Disqualification and Providing Reasons. D. Late Discovery of Grounds for Disqualification. E. Waiver of Disqualification. F. Revoking a Disqualification.

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    166 views16 pages

    Judge Disqualification and Disclosure: Fundamental Rules and Guide for Examining Issues of Disqualification and Disclosure - California Judicial Conduct Handbook - David M. Rothman California Judges Association - Commission on Judicial Performance California

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    California Judicial Branch News Service - Investigative Reporting Source Material & Story Ideas
    Fundamental Rules and Guide for Examining Issues of Disqualification and Disclosure. A. Grounds for Disqualification for Trial Judges. B. A Guide for Examining Issues of Disqualification and Disclosure. C. Giving Notice Concerning Disqualification and Providing Reasons. D. Late Discovery of Grounds for Disqualification. E. Waiver of Disqualification. F. Revoking a Disqualification.

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    of 16
    DAVID M. ROTHMAN Ch. 7 DISQUALIFICATION §7.16 Yelling at the attorney and ordering the challenge “withdrawn.”"' Delay in transferring the case.” Reactions and conduct by other judges. Appropriate and inappropriate communications by other judges. Handbook section 5.04 contains a discussion of the appropriate limits on communications by presiding or other administrative judges concerning peremptory challenges towards another judge, including the so-called “blanket affidavit.” The discus- sion in section 5.04 contains a protocol for appropriate communications and a caution against threats, intimidation, retaliation and improper influence. In ad- dition, the protocol discusses avoiding compromising judicial integrity and impartiality. Inappropriate conduct by other judges. Inappropriate retaliatory conduct by another judge in response to an affidavit of prejudice against a judge is no less improper than such conduct by the judge who is the subject of the challenge.* As noted already, it is improper for the judge who is the subject of a challenge to retaliate in any way against the lawyer or party who exercises his or her statutory right to file an affidavit of prejudice against the judge. As with any of the conduct described in the instant section, retaliation is inconsistent with a judge's duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”* Thus, for example, it would be improper for the judge charged with reas- signment of a case after a peremptory challenge to “punish” a party or counsel in the manner of reassigning the case to another judge. A. [§7.16] Grounds For Disqualification For Trial Judges The grounds for disqualification for trial judges are set out primarily in Code of Civil Procedure section 170.1, with certain definitions, particularly related to “financial interests,” set out in Code of Civil Procedure section 170.5. Thus, “disqualification” can be viewed as a legal term of art that is entirely defined by sections 170.1 and 170.5 and canon 3E(3). The specific grounds in Code of Civil Procedure section 170.1, subdivi- sion (a) are as follows: °! Com. on Jud. Performance, Ann. Rep. (1992), Private Admonishment E, p. 12. ©? Com. on Jud. Performance, Ann. Rep. (2001), Advisory Letter 15, p. 20. °* Com. on Jud. Performance, Ann. Rep. (1996), Advisory Letter 8, p. 24. “4 Cal. Code Jud. Ethics, canon 2A. 307 §7.16 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt 2 (1) having personal knowledge of the facts; (2) having served as a lawyer; (3) having a financial interest (along with definitions in section 170.5, subd. (b)); (4) relationship to a party; (5) relationship to lawyers in the case; (6)(B) bias toward a lawyer in the case; (7) inability to perceive evidence or conduct proceedings; (8) judge’s potential Prospective private dispute resolution involvement. The “general” grounds are those in Code of Civil Procedure section 170.1, subdivision (a)(6)(A): (@ “The judge believes his or her recusal will further the interests of justice”; (ii) “The judge believes there is a substantial doubt as to his or her capacity to be impartial”; and (iii) “A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” These “general” grounds are the most difficult of the disqualification tules. Invalid Grounds for Disqualification. Code of Civil Procedure section 170.2 provides, however, that certain matters are not grounds for disqualifica- tion of a judge. These are the following: “(a) Is or is not a member of a racial, ethnic, religious, sexual or similar group and the proceeding involves the rights of such a group. “(b) Has in any capacity expressed a view on a legal or factual issue Presented in the proceeding, except as provided in paragraph (2) of subdivision (a) of, or subdivision (b) or (c) of, [Code of Civil Procedure] Section 170.1.” “(c) Has as a lawyer or public official participated in the drafting of laws or in the effort to pass or defeat laws, the meaning, effect or application of which is in issue in the Proceeding unless the judge believes that his or her prior involvement was so well known as to raise a reasonable doubt in the public mind as to his or her capacity to be impartial.” ® Code Civ. Proc., § 170.1 subd (a)(2) relates to disqualification where the judge served asa lawyer in the proceedings, subd. (b) relates to disqualification of a judge from participating in the appeal of a matter which the Judge tried or heard, and subd. (c) relates to the motion before an appellate court that further proceedings be heard before a different trial judge. 308 Ch. 7 DISQUALIFICATION §7.16 Subdivision (b) references and examples. Thus, under subdivision, o of section 170.2, a judge is not disqualified after having rendered a egal or factual ruling or decision in a case.* A recent case that received a great deal of national public notoriety il- lustrates this rule. In Schiavo ex rel. Schindler v. Schiavo, Greer and The Hospice of the Florida Suncoast, Inc.,* a severely brain-damaged woman, Theresa Schiavo, was on life support for a number of years. Under Florida law the trial court appointed her husband as the “proxy” to make decisions regard- ing medical treatment to sustain life, including removal or insertion of a feed- ing tube. After the husband decided to remove the feeding tube, Theresa Schiavo’s parents undertook court actions to prevent removal of the tube. The trial judge ordered the feeding tube removed, and the parents’ contest of this decision eventually resulted in an act of the Congress of the United States granting jurisdiction to the United States courts to determine whether Theresa Schiavo’s constitutional rights were violated. The parents immediately sought a temporary restraining order in the United States District Court. Among other things, they contended that Theresa’s Fourteenth Amendment rights to a fair and impartial trial were violated because the state court judge, after designat- ing the husband as the proxy, was essentially disqualified in the case when the dispute arose concerning the husbznd’s decisions as proxy. It was argued that the judge could not “maintain his role as an impartial judge in order to review his own decision that Terri would want to die.”®* The United States district judge made the following ruling on this issue: “Plaintiffs’ argument effectively ignores the role of the presiding judge as judicial fact-finder and decision- maker under the Florida statutory scheme. By fulfilling his statutory judicial responsibilities, the judge was not transformed into an advocate merely because his rulings are unfavorable to a litigant. Plaintiffs’ contention that the statutory scheme followed by Judge Greer deprived Theresa Schiavo of an impartial trial is accordingly without merit, Defendant is correct that no federat constitutional right is implicated when a judge merely grants relief to a litigant in accordance with the law he is sworn to uphold and follow.”® Section 170.2, subdivision (c) references and examples. Under subdivi- sion (c), if a judge, as a lawyer or public official (e.g., as a judge) Participated in drafting legislation, spoke about the subject, <7 ruled for or against legisla- tion, he or she would not be disqualified, “wnsltzs the judge believes that his or See Briggs v. Superior Court (People) (2001) 87 Cal.App.Ath 312, 319, Roth v. Parker (1997) 57 Cal.App.4th 542, 549, Say & Say v. Castellano (1994) 22 Cal. App.4th 88, 91, fn 1. ® Schiavo ex rel. Schindler v. Schiavo (MD. Fla. 2005) 357 F. Supp.2d 1378. © Jd. at p. 1384. Id. at p. 1385. 309, 87.17 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 her prior involvement was so well known as to raise a reasonable doubt in the public mind as to his or her capacity to be impartial.”” Waiver of disqualification. The pariies and counsel may waive certain grounds for disqualification. Waiver of disqualification is discussed in Hand- book section 7.24 et seq. B. [§7.17] A Guide For Examining Issues of Disqualification and Disclosure After a case is assigned to a judge, the judge takes the bench, looks around, and the following conversation takes place: JUDGE: Good morning counsel. I see that the People are represented by Mr. Johnson. I want everyone to know that when I was in the DA’s of- fice before my appointment five years ago, Johnson and I shared an office. Although this would not affect my impartiality, if anyone is uncomfortable with this, I will be happy to disqualify myself and send the case back for reassignment. DEPUTY D.A. JOHNSON: Good morning Judge. Of course there is no problem with your hearing the case. We know you will be fair. DEPUTY P.D. THOMPSON: Well, your Honor, my client would be more comfortable if another judge handled the case. | hope you don’t mind. JUDGE: No problem, | will disquality myself and send the case back. I am sure there are plenty more cases out there. Although this sort of “methodology” for dealing with disqualification and disclosure issues may take place in some courts around the state, it does not conform to what one must do when faced with potential disqualification is- sues, nor does it embody the proper process for the resolution of such issues. Among other things, judges should recuse only when lawfully required to do so. Judges are required to know their financial holdings and any other fac- tors relevant to a consideration of disqualificaiioa is a case, to know the legal rules for disqualification and disclosure, and to micke a decision as to whether or not they are disgusl#fed rather than feave what is a judicial decision to the lawyer in a case. eo The process of disqualification or disclosure needs to be approached in an orderly and careful way. It is not a hodgepodge of ideas that one tosses out and somehow muddles through. Consideration of the issue of disqualification involves a step-by-step decision-making process, beginning with this question: “Is there something about this case that causes me to believe that I ought to disclose something to the lawyers, or even think about recusal?” There is a 7 Code Civ. Proc., § 170.2, subd. (c). 310 => Ch. 7 DISQUALIFICATION §7.17 simple and systematic way to go about examining issues of disqualification and disclosure. The Guide for Examining Issues of Disqualification and Disclosure, Handbook Appendix F, is intended to assist judges in doing just that. It is suggested that the reader look over the Guide carefully, perhaps with a lxypothetical disclosure problem in mind. For example, assume that you own i000 shares of General Motors stock and a party in the action is General Mutors. With this scenario in mind, go over the Guide to get a sense of how it systematizes the process of examining such an issue. ‘The following is a general review of how the Guide works with a focus @, aemme of the issues which the Guide requires you to examine. When the light goes on, the question is: “Am I disqualified?” When the initial thought enters that there may be some issue, the judge’s first and most important question is this: “am I disqualified?” This is where the discus- sion must begin. The meaning of the word “disqualification” is not undefined. It is a legal concept that is, in California, entirely defined by the provisions of Code of Civil Procedure sections 170.1 and 170.5 and Code of Judicial Ethics, canon 3E. That is where you look, and the first task is to make a judicial deci- sion on this most important question. The question is not: “should I disclose and see what the lawyers say?” This is, as I have noted, a judicial decision, and it is not up to the lawyers to tell you if it would be alright with them if you preside in the case. As noted repeatedly here, a judge must hear matters unless disqualified. ~ - Exemining grounds for disqualification. In order to make a decision ‘ibe judge needs wrexamine the various specific and general grounds. ana Pike: F8FeexF OW making a decision regarding disqualification. The first

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