DAVID M. ROTHMANChapter 7 Disqualification I. Scope of Chapter, Legal and Ethical Principles A. [§7.00] Scope of Chapter Disqualification and disclosuze they be the most difficult of judicial duties. They are among the most izsycriant ways in which judges assure the parties and the public of the integrity and fairness of the judicial process. One of the saving concepts in this subject is reasonableness. One can spin an argument that everythiag-in the. life of a judge (from babyhood on) might impact fairness and impanintity. he maintenance of a rule of law, there are rules s@igig-0fi-sa-wernititg Sor disqualification and disclosure that rest on reason ang irastneiaaise- tules are premised on an understanding that in tigers Si & hear ead decide cases there must be some limit on the gronuds Wr tec The Handbook i: procedures governing: Be aed Thupechensive review of the law and i bE pirpese of the discussion here is to examine the ethical issixés hy n and the judge’s ethical du- ties concerning disq oh Sd a ws Judge’s duty to decide cases. The chapter examines ethical concerns related to three aspects of disqualifica- tion: (1) the obligations of a judge on the filing of a peremptory disqualifica- tion under the affidavit of prejudice and challenge for cause pursuant to Code of Civil Procedure sections 170.6 and 170.3; (2) the obligations of a judge to recuse when grounds for disqualification exist, including the rules concerning waiver of disqualification; and (3) the duty to disclose facts that do not require disqualification, but may create the appearance of bias if undisclosed. In the context of disqualification, the term “judge” includes court com- missioners and referees’ and, as always in this book, I refer to all judicial of- ficers as judges unless stated otherwise. Resources: California Judges Benchguide 2, Disqualification of Judge (Revised 2006) by the Center for Judicial Education and Research, provides an exhaus- tive review of the law on the subject of disqualification, and should be consulted when any legal issue on the subject comes up. ' See Code Civ. Proc., § 170.5, subd. (a). 293§7.01 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt 2 Disqualification of Judges (Revised 2007) by Frederick R. Bennett, Court Counsel, Los Angeles Superior Court. This concise and practical Teso®ce ig available from the Los Angeles Superior Court. _Jotée!al Disqualification: Recusal and Disqualification of Judges (2d ed. 2007) by Richard E. Flamm, published: ‘Sy Banks and Jordan Law Publish- ing Company, Berkeley. This is undoubted!y the most comprehensive national resource on the law of disqualification. Guide for Examining Issues of Disqualification and Disclosure, Ap- pendix F to this Handbook. This guide will be discussed further in this chapter and is aimed at providing a useful way to think through these issues. B. [§7.01] Duty to Hear Cases and Avoid Disqualifying Activities The duty to hear cases. Code of Civil Procedure section 170 provides that “[a] judge has a duty to decide any proceeding in which he or she is not disqualified.” This statutory obligation is also reflected in the Code of Judicial Ethics requirement that a judge “hear and decide all matters assigned to the judge except those in which he or she is disqualified.”* The duty to decide cases is aimed at precluding frivolous recusal. The language in United Farm Workers of America v. Superior Court explains that these provision are a reminder to “judges of their duty to hear cases which are controversial and might subject them to public disapproval as well as to protect them from public criticism by a clear statement of their responsibility.”* This case also makes it clear that a judge is obligated to preside in assigned matters unless disqualified. In this regard the canons provide that, “[a] judge shall be faithful to the law regardless of partisan interests, public clamor, or fear of criticism."® Thus, a judge has a duty to decide all matters that come before the judge, even difficult cases (either because of the nature of the case itself or because the litigants or lawyers are difficult people). Handling hard cases may be stressful, but judges are sup- posed to be men and wori#:2f fortitude and must, in order to handle their dif- ficult work, put aside the #4za¢y or emotions that can arise from difficult cases. Accordingly, groundless recusal by a judge is improper. The duty to avoid disqualifying activities. In courtroom or private life, a judge has the obligation to avoid involvement in activities and situations * See as well California Rules of Court, rule 10,608(1), specifying the duty of a judge to preside in assigned matters unless disqualified. Handbook Appendix C contains the disqualification Provisions of the Code of Civil Procedure extant in 2006. * Cal. Code Jud. Ethics, canon 3B(1) and Adv. Com. Commentary to canon 3B(1). * United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 103. * Cal. Code Jud. Ethics, canon 3B(2). 294Ch. 7 DISQUALIFICATION §7.02 which would require disqualification. A judge's judicial duties “take precedence over all other activities”® and a judge must see to it that other activities do not “interfere with the proper performance of judicial duties.”” The purpose of the provisions of the Code of Civil Procedure and the Code of Judicial Ethics concerning disqualification is not only to set out the sorts of relationships that require disqualification but, just as important, to set out the sorts of relationships that do not require disqualification so that judges are able to perform their duties. C. [§7.02] Legal and Ethical Provisions Historically, the common law a#lewesd judicial disqualification only based on a pecuniary interest, with other ¢laims of bias beyond a direct financial interest in the case going unrecognized. One commentator points out that, although this rule made it difficult to disqualify a judge, it had the “advantage of clarity.” Over time, further grounds for disqualification were added to as- sure impartiality. “With each expansion of the common law rule, troubling questions were raised regarding the proper parameters of judicial disqualifica- tion, and many of these questions have yet to be satisfactorily answered.”* The practical need to provide judges to hear cases requires rational limits on the grounds for disqualification without impairing the need to assure fairness. Trial judges. Code of Civil Procedure section 170.1 sets forth all the legal grounds upon which a trial judge is disqualified from hearing matters. To achieve consistency with these statutory grounds, canon 3E(1) of the Code of Judicial Ethics requires that a trial judge disqualify himself or herself “in any proceeding in which disqualification is required by law.”* ‘Yn addition, a trial court judge is required to “disclose on the record infvemation that the judge believes the parties or their lawyers might consider relevait to the question of disqualification, even if the judge believes there is no actual basis for disqualification.” © Cal. Code Jud. Ethics, canon 3A. 7 Cal. Code Jud. Ethics, canon 4A(3). * Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (Banks and Jordan, 2d ed. 2007) § 1.4, pp. 9-10. 9 Adv. Com. Commentary to Cal. Code Jud. Ethics, canon 3E. The commentary states as fol- lows: “Canon 3(E)(1) sets forth the general duty to disqualify applicable to a judge of any court. Sources for determining when recusal or disqualification is appropriate may include the ap- plicable provisions of the Code of Civil Procedure, other provisions of the Code of Judicial Eth- ics, the Code of Conduct for United States Judges, the American Bar Association’s Model Code of Judicial Conduct, and related case law.” '°Cal. Code Jud. Ethics, canon 3E(2). See Handbook section 7.72. 295,§7.03 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 Rules for Appellate Justices. With the promulgation of canon 3E(4) and (5) by the Supreme Court effective December 13, 2000 (and amended in 2005), appellate court justices became bound by specific disqualification rules for the first time since the legislature removed appellate court justices from the requirements of Code of Civil Procedure section 170 et seq. in 1984, Canon 3E(4) and (5) are discussed in detail in a new Handbook section 7.90 et seq., below. Disqualification describes a fact which exists without judicial action or recognition. With one exception, the status of disqualification as to a particular judge in a particular case exists as a matter of law, whether or not the judge recognizes the fact and enters a recusal order, answers or opposes a motion seeking his or her disqualification, or another court orders the judge’s disqualification." As the Court of Appeal stated in Christie v. City of El Cen- tro: “it is the fact of disqualification that controls, not subsequent judicial ac- tion on that disqualification.”? This means that the consequences of the status of being disqualified flow from the moment the fact of disqualification came into existence in a case, not as a result of a later judicial action. Thus, where a case is assigned to a judge in which the judge owns stock worth $10,000 in the corporate party in the ac- tion, the judge is then and there disqualified. If, instead of recusing himself or herself, the judge takes a judicial action that is not one authorized for a disqualified judge to undertake, the act is essentially void and the judge is, moreover, in breach of the code of judicial ethics. (See discussion in Handbook section 7.04.) Whether or not the judge knew, did not recall, or forgot about the stock ownership is of no consequence. The exception to this concept is where a judge is disqualified from hear- ing a matter by the filing of a peremptory challenge, where no legal basis for disqualification is required other than the declaration required by Code of Civil Procedure section 170.6. See discussion of the peremptory challenge in Handbook section 7.10. D. [§7.03] Limits on Powers of Disqualified Judge General rule - no power to act. As noted in the prior section, once a judge is disqualified either as a matter of legal fact or by the filing of a peremptory challenge under Code of Civil Procedure section 170.6, the “disqualified judge shall have no power to act in any proceeding after his or her disqualification” or, in the event a statement of disqualification is filed '! See Code Civ. Proc., § 170.4, subd. (d), and discussion in Handbook section 7.03. " Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 777, and see Giometti v. Etienne (1934) 219 Cal. 687, 689. 'S Code Civ. Proc., § 170.3, subd. (c), 296Ch. 7 DISQUALIFICATION §7.03 because the judge who should do so has not disqualified himself or herself, the judge is disqualified “until the question of his or her disqualification has been determined.”"* Notice to the presiding judge. A judge who is disqualified must notify the presiding judge of the recusal.'* If a judge who disqualifies himself or herself is the only judge or presiding judge of the court, he or she must send the recusal notification to the person having authority to assign another judge."® A disqualified judge has certain limited powers. There are some excep- tions to the rule limiting the powers of a disqualified judge. A judge, whether disqualified by voluntary recusal, the granting of a motion to disqualify,” the filing of a statement of disqualification," or the timely filing of an affidavit of prejudice,” may act in certain limited circumstances: “(1) Take any action or issue any order necessary to maintain the jurisdic- tion of the court pending the assignment of a judge not disqualified. (2) Request any other judge agreed upon by the parties to sit and act in his or her place. (3) Hear and determine purely default matters. (4) Issue an order for possession prior to judgment in eminent domain proceedings. (5) Set proceedings for trial or hearing. (6) Conduct settlement conferences.””> Outside those acts of a disqualified judge which are expressly authorized by law, it is judicial misconduct for a judge to act in a case following disqualification and, moreover, the acts or orders “of a judge subject to disqualification are void or, according to some authorities, voidable,” and “must be vacated.”" See discussion in Handbook sections 7.04 and 7.12. There is a qualified power to proceed where a statement of disqualification is filed after commencement of trial or hearing. Where a '4 Code Civ. Proc., § 170.4, subd. (d). '5 Code Civ. Proc., § 170.3, subd. (a)(1). '© Code Civ. Proc., § 170.3, subd. (a)(2). "7 Code Civ. Proc., § 170.3, subd. (c). '8 Ibid. '? Code Civ. Proc., § 170.6. 20 Code Civ. Proc. § 170.4, subd. (a). See also Handbook section 7.40. *! Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776 and 779, citing Giometti v. Eti- enne (1934) 219 Cal. 687, 689. 907$7.03 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt 2 statement of disqualification is filed pursuant to Code of Civil Procedure sec- tion 170.3, subdivision (c) “after a trial or hearing has commenced by the start of voir dire, by the swearing of the first witness or by the submission of a mo- tien for decision, the judge whose impartiality has been questioned may order _ the trial or hearing to continue, notwithstanding the filing of the statement of _ Sequalification.”” In the event the judge is later found to be disqualified, “all orders and rulings of the judge found to be disqualified made after the filing of the statement shall be vacated.” Hearing “purely default matters.” As noted above, among the things a disqualified judge may do is to act upon matters that are “purely default.” There is no statutory definition of this term, but it must mean a case in which a default has been entered according to law. This rule would not allow a disqualified judge to hear a matter where a party does not appear, and no default has been entered. Just because no one appears at a hearing does not make the hearing a “purely default” matter. Some illustrations might be of use: Probate hearings. In the probate of an estate, papers are filed with the court with notice of hearing sent to the persons entitied-%o nefice: The papers... are usually examined by the court’s probate commifssisuers, referees rat. torneys before the hearing and recommended for approval ‘by the Gooet. i. such situations no appearance of counsel for the exeeuiis te Btminsatrdioe te — required, and the hearings usually take place with nd tppGarance-by any counsel or others with an interest in the proceedings.-"tise teen Bhat paryes as — not appear does not turn the proceedings into a “pufely default taztter® ice — there are usually a number of people with interesé ia the asinte who. ate~ required to be gives Rotive of hearings. A judge who is Gisqealified ig the case— for any reason cant hear the matter without a propa? waiver of diaqualitiee- tion, even though no one appears at any particular hearing.* oe Law and motion hearings. Where counsel submit on the filed papers without appearance in a law and motion hearing, a disqualified judge cannot preside absent a waiver (signed by parties and counsel) as this is not a “purely 22 Code Civ. Proc., § 170.4, subd. (c)(1). 23 Ibid. 4 Code Civ. Proc., § 170.4, subd. (a)(3). 25 See Code Civ. Proc., § 585. 26 See Inquiry Concerning Judge Sullivan, Com. on Jud. Performance, Ann. Rep. (2002), Public Censure and Bar, p. 18. The judge presided in probate proceedings in which he was disqualified. Among other things, he was a witness to the will, was a potential successor executor and trustee, and had managed the decedent’s financial affairs before her death. There was no indica- tion that there were any contested hearings in which he presided. The material noted is in the full decision of the commission issued on May 17, 2002, pp. 5-7, 12-13. 298Ch. 7 DISQUALIFICATION §7.04 default” matter. Since s¢ izany law and motion hearings are conducted without counsel appearing at ihe hearing, a judge must be careful to examine the papers to determine if there is a disqualifying circumstance, and examine the court file to be sure no peremptory challenge has been filed against the judge.”” Criminal cases where parties are not in attendance. In a case where there is a failure of a defendant to appear in a criminal case or where there is a violation of probation, a disqualified judge would have no authority to issue a bench warrant as this is also not a “purely default” matter.?* Trial judge cannot challenge an order of disqualification. In Curle y. Superior Court® the Supreme Court held that, since the disqualified trial judge was not one of “the parties to the proceeding” within the meaning of Code of Civil Procedure section 170.3, subdivsion (d), the judge could not file a peti- tion for writ of mandate, the only remedy to challenge an order disqualifying him. Unless the parties seek to overturn the onier disqualifying a trial judge for cause, the trial judge himself or herseif' has no ability to do so. E. [§7.04] Consequences of Fatiure te Disqualify When Required Failure to disqualify when required is grounds for judicial discipline. In addition to improper demeanor in reaction to efforts to disqualify a judge, discussed in Handbook section 7.12, the failure of a judge to recuse when required is grounds for judicial discipline. For example, a judge’s friend and former campaign manager received a traffic citation for improper registration tags. Although the case was not assigned to the judge, the judge secured the court file and recalled the bench warrant for his friend for failure to appear and continued the matter for payment of the fine. The judge was disciplined for failing to disqualify himself as required under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii).° Actions by a judge while disqualified are void. Code of Civil Procedure section 170.4, subdivision (d) provides that “a disqualified judge shall have no power to act in any proceeding after his or her disqualification . ...” The acts or orders “of a judge subject to disqualification are void or, according to some 27 A judge could be charged with knowledge of the fact that an affidavit of prejudice had been filed in the case. See Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 774. 28 See Inquiry Concerning Judge Simpson, Com. on Jud, Performance, Ann. Rep. (2002), Public Censure and Bar, p. 20. The material noted in the text is in the full decision of the commission issued on December 9, 2002, pp. 4-6. 2° Curle v. Superior Court (2001) 24 Cal.4th 1057. % Inquiry Concerning Judge Simpson, Com on Jud. Performance, Ann. Rep. (2002), Public Censure and Bar, p. 20, The material noted in the text is in the full decision of the commission issued on December 9, 2002, pp. 3-4 nan§7.04 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 authorities, voidable,” and “must be vacated.”*' This is the case even where the disqualification or basis for disqualification was not established at the time of the order. In Giomerti v. Etienne® four justices of the Supreme Court signed the order granting a hearing in the case. Counsel for one of the parties advised the court that one of the justices who signed the order was related to one of the counsel for the petitioners. The court vacated the order and declined to set aside the order vacating the original order noting that “this court has on several occasions pointed out that a judgment rendered by a disqualified judge is void,” and rejecting the argument that “judicial establishment of disqualifica- tion” is controlling, “not the fact of disqualification.” The Court of Appeal in Christie v. City of El Centro found that, as a mat- ter of law, the trial judge was disqualified at the time he granted a motion for nonsuit and dismissal of the case because he had conversed with another judge who had been disqualified in the case: “disqualification occurs when the facts creating disqualification arise, not when disqualification is established.”™ The court held that “[t}he acts of a judge subject to disqualification are void or, ac- cording to some authorities, voidable.”*> 3! Christie v. City of El Centro (2006) 135 Cal.App.4th 767, 776 and 779. citing Giometti v. Eti- enne (1934) 219 Cal. 687, 689. Christie notes that some Courts of Appeal have concluded that orders by a disqualified judge ari: “vaidable.” (Christie v. City of El Centro, supra, (2006) 135 Cal.App.4th at p. 779.) In Urias ». Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 424, the court held that acts of a disqualified judge are voidable, not void, based in part on B.E. Witkin's conclusions: “Witkin notes little is agcemptished by calling the judgment of a disqualified judge ‘void’; the problem is one of jurisdiction. While the disqualified judge totally lacks power to hear and determine the cause, the cougt-itseff- is not without jurisdiction. [Citation.] But the court, with subject matter jurisdiction, Ysy properly be held to lack jurisdiction to act while the judge is disqualified. The problem is rméze a¢gurately one of excess of jurisdiction. [Citation] “Consequently, the actions of a disqualified judge are not void in any fundamental sense but at aaiést voidable if properly raised by an interested party.’ (In re Christian J. (1984) 155 ' Exl-App.3d 276, 280 . ..).” The court in Christie, however, concluded that because the Supreme Court has never reconsidered the holding in Giometti, the Court of Appeal is required to follow Giometti based on Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. (Christie v. City of El Centro, supra, 135 Cal.App.4th at pp. 779-780.) % Giometti v. Etienne, supra, 219 Cal. at p. 689, Christie v. City of El Centro, supra, 135 Cal.App.4th at p. 776. 33 Giometti v. Etienne, supra, 219 Cal. at pp. 688-689. “ Christie v. City of El Centro, supra, 135 Cal.App.Ath at pp. 774-776. The Court of Appeal in Christie pointed out, based on Giometti v. Etienne, supra, 219 Cal. at p. 689, “it is the fact of disqualification that controls, not subsequent judicial action on that disqualification.” Christie v. City of El Centro, supra, 138 Cal-App.Ath at p. 777. Id. at p. 776. 3007, DISQUALIFICATION 87.04 In Urias v. Harris Farms, Inc.® a judge decided a motion for su judgment adversely to a plaintiff. A week following the ruling, plaintiff filed a statement seeking the disqualification of the judge pursuant to Code of Civil Procedure section 170.3 based on the fact that while the judge was a member of a law firm the firm represented the defendant in the case, this within two years prior to the judge’s presiding in the Urias case. The judge was deemed to have consented to the disqualification under Code of Civil Procedure sec- tion 170.3, subdivision (c)(4). The Court of Appeal found that the allegations in the statement of disqualification, being therefore taken to be true, were a sufficient ground for disqualification under Code of Civil Procedure section 170.1, subdivision (a)(2). Although the statement of disqualification was filed after the entry of judgment, the Court of Appeal found that the judge was disqualified, and reversed the order granting the motion for summary judgmest since the judge was disqualified when he made the order.” Judge learns of grounds or grounds arise after rulings. Where the “grounds for disqualification are first learned of or arise after the judge has made one or more rulings” (and the disqualification is not waived), absent good cause, the judge’s rulings “made up to that time” (i.e. the time grounds for disqualification arise or are first learned) “shall not be set aside by the judge who replaces the disqualified judge.”** When a judge first learas-sf grounds or grounds arise after rulifigs the judge should follow the disqustitieation checklist, see Handbook Appendix’ 2, and if disqualification is not waivable or waived, the judge is out of the case. If the disqualification is waived, the judge proceeds as if nothing happened. In either event, prior rulings azé not in jeopardy absent a showing of “good cause.” What does the phrase “first learned of or arise after’? mean? The concept of “first learned of or arise after” and the provisions of Code of Civil Procedure section 170.3, subdivision (b)(4) would not save rulings where the judge knew or should have known of the grounds and simply failed to disqualify himself or herself in a timely manner. In Christie, although the judge did not know that the judge he consulted was disqualified, the judge rul- ing on the motion to disqualify found that the judge “was charged with knowledge of the previous disqualification of Judge Jones because it was in the court file.” In addition although the conduct was innocent and well- intentioned, it still “ ‘undermine[s] public confidence in the integrity and 3° Urias v. Harris Farms, Inc,, supra, 234 Cal.App.3d at pp. 419-420. *” Id. at pp. 424-426. The allegations in the statement of disqualification indicated that counsel for plaintiff did not learn of the grounds for disqualification until after the tuling on the motion for summary judgment, and the Court of Appeal, accordingly, found that the statement was timely (made at the “earliest practicable opportunity”). Jd. at p. 425. ** Code Civ. Proc., § 170.3, subd. (b)(4). 301§7.10 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 impartiality of the judiciary.’ ”** In Urias the grounds for disqualification (that the judge’s former law firm represented a party while the judge was a member of the firm within two years before presiding in the case) were known to the judge from the beginning of the case over which he was presiding. In United Farms Workers y. Superior Court,” the judge, in the midst of the wial, recalled the fact that his wife worked a few days for the farm of a party during a labor strike. Although memory lapse would fall within the “first learned of or arise after” circumstance, the Court of Appeal in this case held that the wife's activities were not a basis for disqualification, IL. Affidavits of Prejudice A. [§7.10] The Peremptory Challenge A common ground for judicial discipline is the improper judicial response to the filing ofan affidavit of Prejudice, also known as a peremptory chal- lenge, pursizasit to Code of Civil Procedure section 170.6. The filing of such affidavits is a notorious threat to the smooth function- ing of the court, and as to which some judges take personal offense. Regard- less of these concerns, the filing of such an affidavit is a legal right in California and, when timely filed, a judge is obliged to recognize, accept, and take those actions legally required in response, Code of Civil Procedure section 170.6 sets out in detail the procedures and time requirements for the filing of the affidavit of Prejudice, including the fact that it may be done orally." Timeliness of an affidavit cannot be waived by the judge. Code of Civil Procedure section 170.6, subdivision (a)(2) contains very explicit rules concerning the time for filing of a peremptory challenge against a judge. In Briggs v. Superior Court® the Court of Appeal held that a trial judge has no discretion or authority to waive these time requirements. This conclusion fol- lows from the requirement that “[a] judge has a duty to decide in any proceed- ing in which he or she is not disqualified.” In Briggs an affidavit of prejudice uasler section 170.6 was untimely because it was filed with the trial judge after the trial judge had conducted a Pretrial hearing involving a determination of contested fact issues relating to the merits of the case. ” Christie ». City of El Centro, supra, 135 CalApp.Ath at p. 774 *° United Farms Workers v, Superior Court (1985) 170 Cal.App.3d 97, 105. Discussed in Handbook section 7.46. *' See California Judges Benchguide 2, Disqualification of Judge (CJER 2006) for a detailed discussion of the rules and procedures applicable to this section. “Briggs v. Superior Court (2001) 87 Cal.App.4th 312, 315-318, 302Ch. 7 DISQUALIFICATION §7.11 Thus, where a trial judge discloses information at some point after the time limitations for the filing of an affidavit of prejudice under section 170.6, the only available remedy is a motion to disqualify under Code of Civil Procedure section 170.3, subdivision (c). Filing of a timely peremptory challenge divests the.court of jurisdic- tion, and is irrevocable. Once a judge accepts a peremptory ‘challenge, even if the acceptance by the judge was not proper, “it [is] effective to divest the trial court of jurisdiction: ‘Unlike the usual law and motion procedural rules, a peremptory challenge is not subject to a judicial hearing in order to be granted; rather, it takes effect instantaneously.’ “We hold that because the challenge takes effect instantaneously and ir- revocably, then later events (such as the dismissal of the. party who asserted the challenge) do not cause a rescission of the challenge.” Peremptory challenge provision inapplicability 20: 2pellate courts and the appellate division of a superior court. The provisions of Code of Civil Procedure section 170.6 apply only to judges, court commissioners, and referees “of any superior court of the State of California,” and, therefore, justices of the Supreme Court and Courts of Appeal are not subject to a peremptory challenge. Judges serving in the appellate division of a superior court are also not subject to the peremptory challenge “in the judge’s capacity as a judge of that division.” B. [§7.11] Challenges For Cause In addition to the ability of a party to challenge a judge in a particular matter by means of the peremptory affidavit of prejudice pursuant to Code of Civil Procedure section 170.6, a judge may also be disqualified for actual cause when he or she has failed to recuse when required to do so. This is ac- complished by the filing of a written verified statement of disqualification which is served on the parties and “personally served on the judge alleged to 3 Daveon, Inc. v. Roberts & Morgan (2003) 110 Cal.App.4th 1355, 1364, citing Truck Ins. Exchange v. Superior Court (1998) 67 Cal.App.4th 142, 147. “4 Louisiana-Pacific Corp. v. Philo Lumber Co. (1985) 163 Cal.App.3d 1212, 1219. Courts have held, however, that parties may be found to have waived any claims to a judge’s acts in excess of jurisdiction following the filing of a peremptory challenge, by cither failing to object to the actions of the trial judge following the challenge (In re Christian J. (1984) 155 Cal.App.3d 276, 280), or by raising no objection to proceeding before the challenged judge following an offer to withdraw the challenge by the party that filed the challenge (Stebbins v. White (1987) 190 Cal.App.3d 769). Despite these cases on waiver, a trial judge would be ill-advised to continue to hear a matter when a proper and timely peremptory challenge is filed, even if a party wishes to withdraw the challenge. *° Code Civ. Proc., § 170.6, subd. (a)(1). 46 Code Civ. Proc., § 170.7. 303§7.12 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt.2 be disqualified, or on his or her clerk, provided that the judge is present in the courthouse or in chambers.”*” The procedure for such a challenge is set forth in Code of Civil Procedure section 170.3, subdivision (c). Section 170.3, subdivision (c) also contains rules for the timeliness of the motion. Consequence of failure to consent or answer the challenge. The statu- tory procedures and legal rules involved in a challenge for cause will not be discussed in any detail with one exception that has serious ethical consequences. On the proper filing and service of the affidavit under section 170.3, subdivision (c), the judge may, “{w]ithin 10 days after the filing or service, whichever is later,” either consent to disqualification (and notify the presiding judge) or “file a written verified answer admitting or denying any or all of the allegations .. . and setting forth any additional facts material or relevant to the question of disqualification.” (Section 170.3, subdivision (c)(3).) In failing to act one way or the = within the 10-day period, a judge is “deemed to have consented to hii disqualification.” The clerk is required to notify the presiding judge of thi t. (Section 170.3, subdivision ¢6}(4).) Such igaaion could be taken to mean that the judge admits the allegations in the affétayit, which, depending on their nature, could have unpleasant implications. Duties to report. As noted above, section 170.3, subdivision (c) requires a challenged judge to notify the presiding judge, or the person authorized to appoint a replacement of a recus#e judge, concerning a challenge. C. [87.12] Improper Judicial Reactions to Peremptory Challenges Judges who view affidavits of prejudice as a personal affront to their integrity, or take offense for other reasons, may overreact, resulting in disciplinary proceedings against the judge. Vindictiveness or retaliation.** Any conduct by a judge that amounts to retaliation for the exercise of a lawful right amounts to judicial misconduct. For example, while a statement of disqualification (alleging cause for disqualification) was pending pursuant to Code of Civil Procedure section 170.3, subdivision (c), a fellow judge ordered the self-represented criminal defendant who filed the statement to be transported to court every day while the motion was pending in the scheduled proceedings in the case.*® This conduct appeared to be retaliatory. Communicating with the judge assigned the case after the peremp- tory challenge. As discussed more fully in Handbook section 5.10, it is *” Code Civ. Proc., § 170.3, subd. (c)(1). ** See In re Rasmussen (1987) 43 Cal.3d 536, 538, where the judge withheld judgments in unrelated cases, apparently involving counsel who exercised a peremptory challenge. “Com. on Jud. Performance, Ann. Rep. (1996), Advisory Letter 8, p. 24. 304Ch. 7 DISQUALIFICATION §7.12 improper for a disqualified judge to communicate with the judge to whom the case is assigned. This section also discusses the consequences where the new judge assigned to a case has a conversation with the previously disqualified judge. Actions taken by the judge after being disqualified.” A judge was disciplined for improperly convening a hearing after the filing of a statement of disqualification pursuant to Code of Civil Procedure section 170.3, subdivi- sion (c)(1).** Another judge was advised that even the signing of a stipulation presented to the judge by the parties is improper since this is not listed as an authorized action under Code of Civil Procedure section 170.4, subdivision (a). Where a judge acts on a case after having been lawfully disqualified by an affidavit of prejudice or a statement of disqualification, or where the judge does not recuse herself or himself when legally disqualified, the judge is not only subject to a charge of misconduct, but any acts or orders “of a judge subject to disqualification are void or, according to some authorities, void- able,” and “must be vacated.”® See discussion in Handbook section 7.04, Inquiry as to the reasons for a peremptory challenge is improper. “It is well recognized that in enacting Code of Civil Procedure section 170.6 the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is ‘automatic’ in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required. [Citations.] Accordingly, the rule has developed that, once an affidavit of prejudice has been filed under section 170.6, the court has no jurisdiction to hold further proceedings in the matter except to inquire into the timeliness of the affidavit or its technical sufficiency under the statute. [Citations.] When the affidavit is timely and properly made, immediate disqualification is mandatory. [Citation.] Hence, petitioner was bound to accept proper affidavits without further inquiry.”™ [Italics added.] °° Com. on Jud. Performance, Ann. Rep. (1997), Advisory Letter 3, p. 21; Com. on Jud. Performance, Ann. Rep. (1999), Advisory Letter 27, p. 24; Inquiry Concerning Judge Simpson, Com. on Jud. Performance, Ann. Rep. (2002), Public Censure and Bar, p. 20. 5! Com. on Jud. Performance, Ann. Rep. (1993), Advisory Letter 8, p. 18. °2 Cal. Judges Assoc., Judicial Ethics Update (2085) g. 2. °° Christie v. City of El Centro (2006) 135 Cai.App.4th 767, 776 and 779, citing Giometti v. Eti- enne (1934) 219 Cal. 687, 689. 4 McCariney v. Commission (1974) 12 Cal.3e 542, 531-332.§7.12 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 Thus, asking an attomey to explain why the attorney filed a peremptory challenge is improper, as is inquiry by the involved judge to the law firm or public agency for whom the attorney works.’5 Even where a judge in good faith, without animosity or any motive to intimidate, wants to know the reasons behind a peremptory challenge as an op- portunity to gain information about his or her own performance, the judge is precluded from engaging in any “further inquiry” concerning a peremptory challenge. A judge against whom a peremptory challenge is filed must accept it and move on. Duty to maintain independence and integrity. Although the motivatiza: to improve performance seems laudable, a judge should not inappropriaiély modify proper and appropriate decisions and Practices to avoid criticism or regain favor with certain litigants and lawyers. $8@ anon 3B(2). Other improper conduct in regard to. being + qualified has included: Refusal to accept the disqualificatian.®* Attempting to dissuade counsel trom exercising challenge.” Displays of temper, intemperate remarks and hostility.* Criticism of lawyer.” Impugning the credibility of the lawyers who have disqualified them.” “Com. on Jud. Performance, Ann. Rep. (1994), Advisory Letter 9, p. 18. The judge was disciplined for an ex parte communication “with a law firm about the basis for the judge's re- Cusal under circumstances which created the appearance that the judge was attempting to influ- ence the law firm.” °° Spruance v, Commission (1975) 13 Cal.3d 778, 797. *7 Inquiry Concerning Judge Mills, Com. on Jud. Performance, Ann, Rep. (2006), Public Admonishment, pp. 26-27. The material noted in the text is in the full decision of the commis- sion issued on June 12, 2006, pp. 9-10. After the judge made an offer of disposition in the ar- raignment court, the public defender filed a peremptory challenge. Before finally accepting the affidavit of prejudice, the judge challenged the Propriety of such a challenge after an offer had been made, and told the lawyer this was “malpractice” since he was “waiving [his] ability to exercise a peremptory challenge on a trial department.” * McCartney v. Commission, supra, 12 Cal.3d at pp. 523, fn. 8 and 529, where the judge angrily criticized public defenders for filing affidavits, said he would not put up with it, that he would take his case to the people, and that he wasn’t being treated fairly. See also Spruance v. Commission, supra, 13 Cal.3d at pp. 786-787; In re Rasmussen, supra, 43 Cal.3d at p. 538: Com. on Jud. Performance, Ann. Rep. (1997), Advisory Letters 4 and 6, p. 21; Com, on Jud. Performance, Ann. Rep. (1999), Advisory Letter 30, p. 24. °° Com. on Jud. Performance, Ann. Rep. (2001), Advisory Letter 15, p. 20. © Com. on Jud. Performance, Ann. Rep. (1991), Advisory Letters 4 and 7, pp. 11-12. 306Ch. 7 DISQUALIFICATION §7.16 Yelling at the attorney and ordering the Delay in transferring the case. ge “withdrawn.” 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. If. Fundamental Rules and Guide For Examining Issues of Disqualification and Disclosure 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. ** 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 (as of Apr. 5, 2007), regarding mutual funds. It should be pointed out that the Political Reform Act excludes from disclosure under the act “interest in a diversified mutual fund registered with the Securities and Exchange Commis- sion under the Investment Company Act of 1940 or a common trust fund which is created pursuant to Section 1564 of the Financial Code.” Gov. Code, § 82034, and see Cal. FPPC, 2006/2007 Form 700 Statement of Economic Interests Reference Pamphlet, p. 10 (as of Apr. 5, 2007). Code Civ, Proc., § 170.5, subd. (b) and canon 3E(5)(d) use the more general language in the disqualifica- tion rules (“{o]wnership in a mutual or common investment fund”). 108 Code Civ. Proc., § 170.1, subd. (a)(3)(C). Cal. Code Jud. Ethics, canon 3E(5)(d). 109 See Code Civ. Proc., § 170.5, subd. (b)(1) through (3) and Cal. Code Jud. Ethics, canon 3E(5)(d). 322Ch.7 DISQUALIFICATION $730 trust is an available means for a judge to avoid the responsibility to remain aware of financial interests, and recuse when required by law." Bank account and other relationship with a bank. The fact that a judge has a bank account, or engages in any other arm’s length transaction with a bank is not a basis for disqualification or disclosure." A bank account or loan from a bank is not a ‘legal or equitable’ interest in the bank requiring disqualification, whereas a judge’s ownership of stock in a bank in excess of a value of $1,500 is a financial interest requiring disqualification."? A judge was disciplined for ruling on motions in litigation in which a bank was a party. The judge was a former director of the bank and held stock in the bank worth $6,500. The judge failed to recuse or disclose this interest." Involvement in financial affairs of party before the judge. A judge was disciplined for, among other things, presiding in probate proceedings in which he was disqualified for having been a witness to the will in probate, was a potential successor executor and trustee, had managed the decedent’s financial affairs before her death and continued to manage the estate and trust financial affairs after death."* Financial interest of ownership of stock in party. A judge is disquali- fied where the judge owns “a legal or equitable interest in a party of a total fair market value in excess of one thousand five hundred dollars ($1,500).’" A judge was publicly admonished for failing to disqualify himself in four cases involving a corporation in which the judge held stock valued at ap- proximately $45,000. The commission found that the judge’s “explanation that he had failed to familiarize himself with the provisions of Code of Civil Procedure section 170.5, subdivision (b) served to aggravate, rather than mitigate, his misconduct in failing to disqualify himself.”"* Financial interests of ownership of stock in an entity that is a parent, subsidiary or affiliate of a party. Because of the intricacies of corporate ownership it is possible for a judge (or spouse or minor child living in the 110 Blind trusts appear to have some level of recognition under the reporting requirements of the Political Reform Act. See Cal. Code Regs., tit. 2, § 18235. "M1 Cal. Judges Assoc., Formal Ethics Opinion No. 45 (1997) p. 5 (Handbook Appendix D). And see Central Pacific Railway Company v. Superior Court (1931) 211 Cal. 706. "2 Code. Civ. Proc., §§ 170.2, sated. €2)(3) and 170.5, subd. (b). "3 Com. on Jud. Performance, Ain, Rep. (1993), Advisory Letter 2, p. 17. "4 Inquiry Concerning Judge Sulstvas, Com. on Jud. Performance, Ann, Rep. (2002), Public Censure and Bar, p. 18. The miateried noted in the text is in the full decision of the commission issued on May 17, 2002, p. 5. "5 Code Civ. Proc., § 170.5, subd. (b). \16 Inquiry Concerning Judge Stoll, Com. on Jud. Performance, Ann. Rep. (1996), Public Admonishment, pp. 20-21.§7.30 CALIFORNIA JUDICIAL CONDUCT HANDBOOK ris household) to own an interest in an entity that is not a named “party” in the proceeding, but that could have an interest in the party or be impacted by a decision as to the party. Must a judge keep: track of such entities and recuse where the judge (or spouse or minor child) has a financial or other interest in an entity or person that is not a party to the proceedings? Applicable disqualification statutes. Code of Civil Procedure sections 170.1, subdivision (a)(3) and 170.5, subdivision (b) provide that a judge is disqualified where the judge, or spouse or minor child residing in the household, has “a financial interest in the subject matter in a proceeding or in a party to the proceeding.” “Financial interest” is defined as “ownership of more than a 1 percent legal or equitable interest in a party ....” {italics added.) Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) requires disqualification where a “person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Analysis of financial interest statute and the Central Pacific case. In Central Pacific Railway Company v. Superior Court” a named, but non- appearing, party in the action was Bank of Italy National Trust and Savings Association. Toward the end of the court trial, a party sought disqualification of the judge because he was a depositor in the Bank of Italy’ and was at all times since the commencement of the action a stockholder of Transamerica Corporation, which was, during all times, “the owner of substantially all of the capital stock of the Bank of Italy.” The Supreme Court held that because Transamerica was not a party in the case, the judge was not disqualified regardless of the fact that Transamerica owned a party: “To be a stockholder in some corporation which is not and could not be made a party to the action cannot by any stretch of reasoning be held to amount to a disqualification, and we are cited to no authority which so holds.” The disqualification provisions of Code of Civil Procedure 170 at the time of Central Pacific stated that “No . . . judge . .. shall sit or act as such in any action or proceeding: ... 2. In which he is interested as the holder or owner of any capital stock of a corporation ....” This provision did not '"7 Central Pacific Railway Co. v. Superior Court, supra, 211 Cal. at p. 719. "8 Without more, being a depositor in a bank is not a grounds for disqualification, “It may be generally stated that the bare relation which a trial judge might happen to hold toward a national banking corporation, one of the defendants in an action, in the capacity of a depositor therein, ought not, in the absence of any further showing, to constitute any more of a disqualification to try the cause than would the relation which such a judge might hold to a municipality as a taxpayer therein disqualify him to pass in judgment upon the validity of the tax.” Central Pacific Railway Co. v. Superior Court, supra, 211 Cal. at p. 718. ' Central Pacific Railway Co. v. Superior Court, supra, 211 Cal. at p. 720. See also Good- speed v. Great Western Power Co. (1937) 19 Cal.App.2d 435, 445-447. 324Ch.7 DISQUALIFICATION §7.30 include the words “interest in a party.” The present Code of Civil Procedure section 170.5, subdivision (b), defining financial interest (including stock ownership - i.e., an “equitable. interest”), specifies that it be “an interest in a party.” The conclusion in Cevtra! Pacific that the interest must be in a party is, therefore, strengthened by #fie sore explicit language in the present statute. In addition, the disqualification statutes make no mention of financial interest in entities other than a party, nor does the statute refer to ownership interests that may be affected by a decision regarding a party. Were it the intent of the legislature to require disqualification based on ownership of a parent, subsidiary or affiliate of a corporate party, one would expect the legislature to have done so.'7° Consideration of factors in addition to mere ownership of stock ina par- ent, subsidiary or affiliate of a corporate party. Central Pacific makes it clear, however, that if the entity which the judge owns could lawfully be made a party to the action, disqualification would appear to be required. Further, there may exist a factor other than mere ownership of stock in the related entity which could raise a question of disqualification, as noted in the following discussion. Analysis under the general disqualification rule in Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(ii). Although ownership in a entity that has an interest in a named party is not a ground for disqualification under the specific provisions of Code of Civil Procedure 170.1, subdivision {a)(3), a judge should also examine the disqualification rule set out in Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii). Among other possibilities, if the judge's interest in the related entity is substantial and there exists a potential of significant financial impact on the entity which the judge owns, a judge would have to consider recusal. How is a judge to determine whether there is this sort of secondary inter- est_in_a party? Due to the complexity and rapid changes that take place in modern corporate organization and ownership it could be an almost impossible burden to require a judge ts continually monitor the various ongoing and ever 120 Code of Civil Procedure section 170.3, subd. (b) dees not define “party.” This is in contrast to the provisions of Code of Civil Procedure section 170.1, subd. (2)(8)(B)(ii), related to disqualification in certain circumstances of involvement with private dispute resolution before retirement. This subdivision provides that for “the purposes of this paragraph,” a “party” is defined to include a “parent, subsidiary, or other legal affiliate.” Because this expanded meaning of “party” is limited to the paragraph concerning dispute resolution, and not the entirety of sec- tion 170.1 or of subd. (a), it cannot be argued that the expanded meaning of “party” in section 170.1, subd. (a)(8)(B)(ii) applies to the word “party” as used throughout section 170.1. See also Gov, Code, § 82034 which has a similar expanded definition of “business entity.” The analysis in Handbook section 7.30 related to disqualification issues raised by a financial interest in an entity affiliated to a party was assisted by the decision in Order Striking Statement of Disqualification in Marsolais v. Does (Super. Ct. L.A. County, 2006, No. BC332581) by Judge Andria Richey.eee Pye Ne changing parent, affiliate and subsidiary structures vi fi < bote st tbe! solution is to require the parties and counsel to idextity| fis chigte a ate uy eT Pe ‘ fon aM sion as to whether there is any circumstance reqg! ago ypc : disclosure. ved he c . obec erg e jap ge California Rules of Court, rule 8.208 requires uns Catdinegte ah = Interested Entities or Persons in appellate courts fen Pe pele aebuging € from the parties the identity of entities or persons thee! he heated pleadings that may have a significant financial or diher"fntérbst in'a! naira * party in the proceedings. This rule is discussed at greater length in Handbook section 7.91." The rules for disqualification of appellate judges and trial judges are similar.” Question of the propriety of disposing of a financial interest before a hearing in order to eliminate the need for disqualification. Subject to the qualification and caution noted below, it may be proper for a judge to dispose of an otherwise disqualifying financial interest before a hearing in a case, thereby avoiding the necessity for disqualification. Although Code of Civil Procedure section 170.1 does not specify when a financial interest must be held to require recusal, if a judge no longer has an interest at the time a hear- ing commences, there would be no rationale for recusal. Canon 4D(4) lends some support for this view: to the trial judge so that the trial judge will be able iy mei tate “A judge shall manage personal investments and financial activities so as to minimize the necessity for disqualification. As soon as reasonably pos- sible, a judge shall divest himself or herself of investments and other financial interests that would require frequent disqualification.” Disclosure required. In a case where disposal of a holding takes place near the time of a judge hearing a case and such disposition was motivated by the case being assigned to the judge, disclosure would be appropriate under canon 3E(2). '°! Rule 8.208 is not a legal determination on whether a particular interest or relationship requires disqualification, but only a stipulation that the appellate justice should be made aware of interests and relationship to a party that have the potential of disqualification. Since the disqualification rules between judges and justices are similar, a rule similar to this should be adopted for trial judges. '? The applicable disqualification rules for appellate justices are: canon 3E(4)(c), requiring disqualification of a justice where “asf28¢saable person aware of the facts would doubt the justice’s ability to be impartial”; and ci '5)(d) requiring disqualification where an “appel- late justice, or his or her spouse, or #434¥4#'child residing in the household, has a financial interest or is a fiduciary who has a financial interest in the proceeding, or is a director, advisor, or other active participant in the affairs of a party.” The latter canon goes on to define “financial interest” as “ownership of more than a 1 percent legal or equitable interest in a party, or a legal ‘or equitable interest in a party of a fair market value exceeding one thousand five hundred Gollars.” Compare these to the trial judge rules in Code Civ. Proc., §§ 170.1, subd. (a)(3), subd. (aX)AMii), and 170.5, subd. (b). 326Ch.7 DISQUALIFICATION §7.31 Does withdrawing from the class avoid the need for recusal in a class action? When a judge owns a product or has an interest which could be impacted by a class action, may the judge eliminate the need fer secusal by withdrawing from the class (e.g., waiving any interest in the class action)? There is nothing in the Code of Civil Procedure on this point but, again, using the analysis above (concerning sale or disposal of a financial interest before hearing), there would seem to be no reason to require disqualification if the judge eschews any gain from the class action. Again, disclosure is essential. Financial interest disqualification can be waived. As noted in Code of Civil Procedure section 170.3, subdivision (b), the parties may waive disqualification of a judge based on financial interest. 2. [$7.31] Bonded Indebtedness A bonded indebtedness, under the law, is not a “legal or equitable inter- est” and thus is not a grounds for disqualification within the meaning of Code of Civil Procedure section 170.5, subdivision (b)."*° In 2003, however, the Supreme Court added canon 3E(3) which requires disqualification under certain circumstances where a judge owns bonds. Disqualification rules concerning bonded indebtedness. Canon 3E(3)"* of the Code of Judicial Ethics provides: “Ownership of a corporate bond issued by a party to a proceeding and having a fair market value exceeding one thousand five hundred dollars is disqualifying. Ownership of government bonds issued by a party to a proceeding is disqualifying only if the outcome of the proceeding could substantially affect the value of the judge’s bond. Ownership in a mutual or common investment fund that holds bonds is not a disqualifying financial interest.” Disclosure concerning bonds when disqualification is not required. Although this new canon does not deal with the issue of disclosure of bond ownership, it would be appropriate to disclose what the judge believes to be a non-disqualifying bond ownership since & weuld give the parties an op- portunity to provide information unknown to the judge, if any such informa- tion exists, that the outcome of the proceeding could substantially affect the value of the bond. 123 This section of the Second Edition of the Handbook contained an error in this regard. Rothman, Cal. Jud. Conduct Hanbook (1999) p. 192. It indicated that “county bonds” were not exempt from the definition of “financial interest” in Code Civ. Proc., § 170.5, subd. (b). This statement was incorrect. The issue, however, is moot based on the provisions of Cal. Code Jud. Ethics, canon 3E@) regarding ownership of bonds discussed in this section. 124 Jnitially this canon was numbered as 3E(4), but was renumbered effective January 1, 2005.‘Pm going to disqualify myself.” w Yorker Collection, Leo Cullum bank.com. All Rights Reserved, 3. [§7.32] Relationships With Attorneys, Parties or Witnesses Professional contact with attorneys does not require disqualification or disclosure. The fact that aij dg and. an serve together in a profes- sional legal organization, th ith fa: s\oliy. a seOfessional relationship with Wee either recuse or disclose ' the attorney, does not ni i when the attorney appeats! me Business relations! and rents to lawyers who fy because of the financial eaiati where tenants of a judged at fay court on which the jud: be - ments,"”” and must conSidég t:dp), "> Cal. Judges Assoc., Judicial Ethics Update (2003) p. 2. 26 Cal. Judges Assoc., fal te a aa: Whee a judge owns a building ee the judge is disqualified i hywlyers."* More importantly, die“Gikely to appear before the igs fetecluded from such invest- 4 laf, Gisqualification, but also of icial Ethics Update (1983) p. 2. "7 Cal. Code Jud. Ethics, canon 4D(1)(b). 328Ch. 7 divesting ownership. Note the above provision of Code of Judicial Ethics, canon 4D(1)(b), does not limit itself to persons likely to appear before the judge alone, but extends to those likely to appear before the court on which the judge serves. A judge was publicly admonished for, among other things, failing to disclose and disqualify himself when an attorney appeared before the judge who was a tenant in a building owned by the judge and his wife.’ A judge was disciplined for not disclosing that the judge had a business partnership with a member of a law firm where an associate of the firm ap- peared in court. The business partnership also received income from the firm.” Receipt of gifts from attorneys. Receipt of gifts from lawyers, especially where they have matters before the court, creates an appearance of impropriety and, in addition, such a gift may be improper under Code of Judicial Ethics, canon 4D(6). Receipt of a gift from a lawyer may require disqualification. But because judges are required to manage financial activities (such as taking gifts) “so as to minimize the necessity for disqualification,” the taking of a gift which requires disqualification would be improper. Moreover, even if a gift did not require disqualification, it would, at minimum, require disclosure were the lawyer to appear before the judge. In 1992, two judges were privately admonished for receipt of gifts from attorneys practicing before ‘the judge. The gifts were improper because they had a value of several hundred dollars and exceeded the bounds of the “ordinary social hospitality” exception to canon 4D(6)(d). In each case, the commission found “no perceived favoritism toward the donors or other impropriety in the judge’s handling of cases.” The Commission on Judicial Performance disciplined a judge for receiv- ing a gift from a “partner in a law firm whose case was then actually pending before the judge.” In addition, the judge received other gifts from “attorney friends” which the commission found to be “within the bounds of ‘ordinary social hospitality.’ ” Although the judge disclosed on the record the relation- ships to the various lawyer donors, the judge did not disclose the receipt of the gifts. 28 Inquiry Concerning Judge Shook, Com. on Jud. Performance, Ann. Rep. (1998), Public Admonishment, pp. 24-25. The material noted in the text is in the full decision of the commis- sion issued on October 29, 1998, pp. 1-2. 129 Com. on Jud. Performance, Ann. Rep. (1999), Advisory Letter 1, p. 21 "30 Cal. Code Jud. Ethics, canon 4D(4). ‘3! Com. on Jud. Performance, Ann. Rep. (1992), Private Admonishments B and C, p, 12. ' Com. on Jud. Performance, Ann. Rep. (1992), Advisory Letter 15, p. 15. See Handbook sec- tion 9.44 regarding the meaning of “ordinary social hospitality.”A judge is also requitsd °. disqualify where an attorney loans the judge a computer, arranges car purchases and maintenance for members of the judge's family, seeks advice from the judge on strategy in cases before other judges, and attends reciprocal social dinners with the judge." Friendship with attorneys - with history of gifts. A judge had a “long- term personal relationship” with a lawyer and, in 1992, the judge was privately admonished for failing to disclose his relationship with the lawyer, which included acceptance of gifts of golf tournament fees from the lawyer and his partner. Following the 1992 admonishment, the judge continued to maintain a relationship with this lawyer, which included playing golf together, seeing the lawyer “at bi-monthly dinner meetings of the American Board of Trial Advocates and at bench-bar mixers.” The judge also had drinks with the lawyer at a bar or restaurant, and attended a dinner at the lawyer’s home before 1993. In 2000 the lawyer appeared as counsel in a case before the judge, and the commission publicly admonished the judge for failing to disclose his relationship with the lawyer when the lawyer entered the case, cit- ing canon 3E(2).™ Business relationships with witnesses. A judge was disciplined for fail- ing to disclose a business relationship with a witness, even though the judge was under the impression that all parties knew of the relationship."* Judge’s duty to divest of investments and financial interests that cre- ate gemfiiets. Canon 4D(4) requires a judge to “divest himself or herself of investments and other financial interests that would require frequent disqualification.” Thus, where a judge has interests or investments that result in frequent disqualification, disqualification is Bg $&fficient because a judge is also obliged to avoid private life activitisz that “interfere with the proper performance of judicial duties.”"* 2 "Cal. Judges Assoc., Porat Ethics Opinion No. 45 (1997) p. 4 (Handbook Appendix D). See also Adams v. Commission (1995) 10 Cal.4th 866. "Inquiry Concerning Judge Di Figlia, Com. on Jud. Performance, Ann. Rep. (2007), Public Admonishment. The material noted in the text is in the full decision of the commission issued on January 9, 2007, pp. 1-2. '85 Com. on Jud. Performance, Ann. Rep. (1990), Advisory Letter 38, p. 25. When both disqualification and disclosure are implicated, the commission will often rest discipline on a failure to disclose since, at minimum, the conduct required disclosure. '86 Cal. Code Jud. Ethics, canon 4A(3). 330Ch. 7 DISQUALIFICATION 87.34 4. [§7.33] Relationships With Businesses Affected With a Public Interest Judges are prohibited from serving as an “officer, director, manager, or employee of a business affected with a public interest, including, without limitation, a financial institution, insurance company, or public fi af Judges, of course, may conduct ordinary business with finawnial Masti tions and are not disqualified from hearing cases involving! pa financial institution with whom they do business, unless some other factpir exits. $udh factors may include that the mortgage or interest rate is not “i he souoler course of business on the same terms generally available to persons who are not judges,”""* the judge has a dispute with the institution, or the decision in the matter could have a substantial effect on the soundness of the financial institution. The existence of an “arm’s length relationship” with a bank, such as an account or a home mortgage, absent other factors such as some special treat- ment, need not even be disclosed.’ As to loans other than home loans, disclosure might be required if the loan were of such a size, and the terms were such that the judge concludes that “the parties or their lawyers might consider [it] relevant to the question of disqualification.” This is based on the duty to disqualify if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”"“" Although not always required, disclosure: (1) does not harm; (2) offers parties the opportunity to provide the judge with information about the case which might change the judge’s assessment concerning disqualifica- tion; and (3) provides the assurance of openness and fairness in the: proceedings. 5. [§7.34] Relationships With Insurance Companies Insurance companies may be involved in a case both as a named party” and as a non-party carrier. In either event, a judge who has a policy with a “mutual insurance company” does not have a financial interest requiring disqualification unless “the outcome of the proceeding could substantially af- fect the value of the interest.”"* The same rule would apply to an automobile insurance carrier. Under the above circumstances, disclosure is not required. 87 Cal. Code Jud. Ethics, canon 4D(3). ‘In this event, the loan would be improper under Cal. Code Jud. Ethics, canon 4D(6)(g). '89 Cal. Judges Assoc., Formal Ethics Opinion No. 45 (1997) p. 5 (Handbook Appendix D). '4 Cal. Code Jud. Ethics, canon 3E(2). "41 Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii). “2. Code Civ. Proc., § 170.5, subd. (b)(3). 3313/90 SALAD INNES PUDICUAL CUNDULT BAND DUUE res However, where the insurance company is a party or the judge knows that the company is the carrier in the case, and he or she has a pending claim or dispute with the insurance company, the judge may be disqualified. At the very least, the relationship should be disclosed, unless the judge would have no reason to know the identity of the carrier. Moreover, it may not be ap- propriate for a judge to inquire regarding insurance coverage under Evidence Code section 1155. The Ethics Committee of the California Judges Association has advised that where the judge has his o£ tire net worth invested in an insurance company appearing as a party % e insurer, the judge is disqualified."* Although the Ethics Update dié-%sétinclude the explanation for the advice which the committee provided the judge, the advice ve been based on either Code of Civil Procedure section 170.1, su {an (a)(6)(A)(iii) (a person aware of the circumstances would reasonably “entertain a doubt”), sec- tion 170.5, subdivision (b) (where the holding is a legal or equitable interest, not just a policyholder), or section 170.5, subdivision (b)(3) (where the case could substantially affect the value of the interest). Where the judge’s spouse is making a claim against an insurance carrier who insures a party in the cas, the judge is not disqualified, but should disclose the information.** 6. [§7.35] Judge's Future Career Gppartunities When a judge begins thinking Of leaving ek bench with the idea of pursuing other opportuniti¢s, | the’ jadpe mist ‘pe tte of several ethical rules. Handbook section 9.09 et sei. @ontains 6 full discussion of the ethical rules which limit conduet.of @ judge in euch fuftin® bategr planing. Disqualification zuzuliing from: ectacts with law firms. While a judge is involved in intéewing with a law firm, the jadge should not hear that firm’s cases until he or she is no longer considering such employment." Disqualification resulting from contacts regarding private dispute resolution. In 2002, the legislature enacted a new ground for disqualification, Code of Civil Procedure section 170.1, subdivision (a)(8). In September of 2005 this statute was amended to clarify the meaning of the law. Section 170.1, subdivision (a)(8)(A) provides that a judge shall be disqualified if: 149 Cal, Judges Assoc., Judicial Ethics Update (2001) p. 4. 144 Cal, Judges Assoc., Judicial Ethics Update (2001) p. 2. 145 Cal. Judges Assoc., Judicial Ethics Update (1990) p. 2. '4 Canon 3E(5)(h), applicable to disqualification of appellate justices, contains similar provi- sions to Code Civ. Proc, § 170.1, subd. (a)(8). 332Ch.7 DISQUALIFICATION §7.35 “The judge has a current arrangement concerning prospective employ- ment or other compensated service as a dispute resolution neutral or is participating in, or, within the last two years has participated in, discus- sions regarding prospective employment or service as a dispute resolution neutral, or has been engaged in such employment or service, and any of the following applies: (i) The arrangement is, or the prior employment or discussion was, with a party to the proceeding. (ii) The matter before the judge includes issues relating to the enforcement of either an agreement to submit & dispute to an alternative dispute resolution process or an award or other final decision by a dispute resolution neutral. (iii) The judge directs the parties to participate in an alternative dispute resolution process in which the dispute resolution neutral will be an individual or entity with whom the judge has the ar- rangement, has previously been employed or served, or is discussing or has discussed the employment or service. (iv) The judge will select a dispute resolution neutral or entity to conduct an alternative dispute resolution process in the matter before the judge, and among those available for selection is an individual or entity with whom the judge has the arrangement, with whom the judge has previously been employed or served, or with whom the judge is discussing or has discussed the employment or service.” Section 170.1, subdivision (a)(8)(B) contains definitions of “party” and “dispute resolution neutral,” along with definitions of the terms “participating in discussions” or “has participated in discussion.” This latter definition is particularly important and particularly detailed: “(j) ‘Participating in discussions’ or ‘has participated in discussion’ means that the judge solicited or otherwise indicated an interest in accepting or negotiating possible employment or service as an alternative dispute resolution neutral or responded to an unsolicited statement regarding, or an offer of, such employment or service by expressing an interest in that employment or service, making any inquiry regarding the employment or service, or encouraging the person making the statement or offer to provide additional informa- tion about that possible employment or service. If a judge’s response to an unsolicited statement regarding, a question about, or offer of, prospective employment or other compensated service as a dispute resolution neutral is limited to responding negatively, declining the offer, or declining to discuss such employment or service, that response does not constitute participating in discussions.”5 Nana EES SESE AEISIIIIN ANB SNK IINIION DE ELAINU DOOR Duty of judge to avoid engaging in activity that will cause disqualification. A judge considering retirement activity, before even contact- ing or speaking with a law firm, alternative dispute resolution organization, or anyone else, should avoid activities that would require disqualification. As already noted, a judge is obliged under canon 4 to conduct all extra-judicial activities so “as to minimize the risk of conflict with judicial obligations.” Moreover, if a judge fails to disqualify himself or herself, the consequences would be very serious both for the litigants and the judge. Disqualification obligations of temporary judges and contractual arbitrators. Anyone serving in the capacity of a temporary judge or contractual arbitrator is also bound by a disqualification rule similar to Code of Civil Procedure section 170.1, subdivision (a)(8). Temporary judges. In 2006, the Supreme Court significantly revised the provisions of Code of Judicial Ethics canon 6D, commencing with canon 6D(3), in order to add specific ethical rules for disqualification of temporary judges. During the entire period from appointment of a temporary judge until the termination of appointment, where a temporary judge serves beyond merely conducting a settlement conference, the temporary judge is required to disqualify himself or herself under a variety of circumstances. Some of these are familiar based on Code of Civil Procedure section 170.1 and the defini- tions under section 170.5. Others, however, address issues particular to temporary judges. These include, among others: a variation of Code of Civil Procedure section 170.1, subdivision (a)(8), related to private dispute resolu- tion arrangements, that addresses the different circumstances of a Setipeeary. judge from those which a sitting judge would experience (canow SH limitations on serving in a family | nlawful detainer preseatiny certain circumstances (canon 6D(3)( the use of title b# 4g = judges appointed under rule 2.810 of &s alifornia Rules of Caos) & = 6D(9)). oe Temporary judges should be aware that canon 6D, before and after the 2006 modifications, contains extensive ethical obligations for those serving as temporary judges, and that violation of canon 6D is a ground for State Bar discipline. See Handbook section 1.36 for discussion of ethical rules ap- plicable to temporary judges, referees under Code of Civil Procedure sections 638 and 639, and court appointed arbitrators. Contractual arbitrators. A neutral arbitrator in a contractual arbitration is disqualified from serving as an arbitrator where “any ground specified in Code of Civil Procedure section 170.1 exists and the party makes a demand that the arbitrator disqualify himself or herself. .."“ Because a neutral arbitrator will undoubtedly be engaged in employment as a dispute resolution neutral, he or 3 "#7 Cal. Rules of Court, Ethics Standard For Neutral Arbitrators in Contractual Arbitration, Standard 10(a)(5). 334Ch. 7 DISQUALIFICATION §7.36 she will have to be aware of the provisions of Code of Civil Procedure section 170.1, subdivision (a)(8) and determine exactly how this provision could implicate disqualification. 7. [§7.36] Personal Knowledge, Witness, Experience in Relation to Subject Matter'* Personal knowledge of evidentiary facts or witness. Where a “judge has personal knowledge of disputed evidentiary facts” in a case, the judge is disqualified. “Personal knowledge” exists where “the judge, the spouse of the judge, or a person within the third degree of relationship to either of them, or the spouse of such a person is to the judge’s knowledge likely to be a material witness in the proceeding.”"° Involvement in litigation against a party. Where a judge is involved in litigation against a party to the current case, the judge is required to recuse."” Personal life experiences - generally. Judges do not exist in an antiseptic bubble. As with anyone, a judge has life experiences, information about the world, and emotions and thoughts that resonate in relation to matters that come before the judge. As pointed out in Handbook section 7.74 regarding the extent of the obligation to make non-disqualifying disclosures, judges ave people with a variety of experiences and emotions. The duties of disqualification and disclosure must be tested by seme level of good sense and reasonableness. Judges are assumed to be mex 2nd women of fortitude which, among other things, means that they are &xpected to honestly examine their lives, thoughts, experiences, relationships and biases and not to sit on a case unfess they have determined that none of these things will stand in the way of rendering fair and impartial justice. Suggestions on examining the problem of direct personal experiences and disqualification. There are, of course, many life experiences that could impact a judge’s ability to remain impartial. In considering whether a particular life experience could impact the need to recuse, a judge might consider the following thought process: First, the judge must honestly examine his or her innermost thoughts and determine whether, in fact, these very personal life events create within the judge the reasonable likelihood that the judge will not be able to be fair and 148 See also Handbook section 7.57 which deals with related issues involving private life activities. 149 Code Civ. Proc., § 170.4, subd. (ay explanation of the “third degree of relatic avd (B}. Handbook section 7.46 contains an 150 In re Youngblood (19833 33 €al.38 788; Cade Civ. Proc., § 170.1, subd. (a)(6).§7.36 CALIFORNIA JUBICTSL. CONDUCT HANDBOOK Pt. 2 impartial in the case. This goes to tie question of subjective bias, and if the judge so concludes, recusal is necessary.'*! Second, if the judge is satisfied that the events will not prejudice him or her, the judge must determine whether, based upon an objective standard, oth- ers, aware of these events in the life of the judge, “might reasonably entertain a doubt that the judge would be able to be impartial.” It is important to emphasize the word “reasonably” in order to avoid frivolous conclusions and being set adrift on a sea of uncertainly. Thus, for example, in considering this question, if the event was recent or ongoing, the potential for the need to consider recusal would be more intense. Recusal in such a situation could be waived, assuming the judge concluded that he or she could remain impartial."* Third, if the circumstances do not require recusal, the judge in these circumstances would have to consider whether the situation requires at least a disclosure pursuant to Code of Judicial Ethics, canon 3B." Example of a life event - a judge or close family member is currently personally involved in a similar case to that before the judge. Formal Eth- ics Opinion 56 provides a uscful system for thinking about issues of disqualification, or disclosure if disqualification is not appropriate, by using the example of the arrest or prosecution for a criminal offense of the judge or member of the judge’s family." (a) Honest evaluation of ability to remain fair and impartial. The first and most important question is whether, upon honest examination, the judge will be able to remain impartial in the case as a result of the personal life experience. If not, recusal is required. (b) Application of the objective standard of Code of Civil Procedure sec- tion 170.1, subdivision (a)(6)(A)Gii). If the conclusion is that the judge has no doubt that he or she will remain fair and impartial, Formal Ethics Opinion 56 provides a very useful list of the sorts of questions that the judge should think about in deciding whether to recuse because a person aware of the facts “might reasonably entertain a doubt that the judge would be able to be impartial.” “1, Whether the subject of the arrest or prosecution is the judge or is a member of the judge’s family; 151 Code Civ. Proe., § 170.1, subd. (a)(6XAXGi). 152 Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii). 153 Code Civ. Proc., § 170.3, subd. (b)(2)(A). 154 See Handbook section 7.73 et seq. 455 Cal, Judges Assoc., Formal Ethics Opinion No. 56 (2006) pp. 3-5 (Handbook Appendix D). 336ch.7 10. il. 12. 13. DISQUALIFICATION §7.36 . The jurisdiction in which the judge’s or family member's arrest oc- curred or where the case is being prosecuted; . If the case is filed in the judge’s own jurisdiction, whether it is being heard in the same courthouse in which the judge sits; . The seriousness of the alleged criminal activity of the judge or family member, or the seriousness of the consequences; . Whether criminal charges have been or likely will be filed; . If criminal charges have been filed, the stage of the criminal case; - Any similarity between either the nature of the charges against the judge or family member or the underlying facts, and the case before the judge; . Whether the case before the judge involves the same law enforce- ment or prosecutorial agency as in the judge’s or family member’s criminal case; . If there is a conviction, whether it resulted from a negotiated plea or a contested trial; If there is a conviction, the terms of any sentence inzposed; If there is a conviction, whether the case is on appeal; Whether the family member arrested resides in the jucige’s household and, if not, the closeness of the relationship between the judge and the family member; . Whether the judge participated in the selection or retention of counsel for the family member,”"* Formal Ethics Opinion Nureber 56 concludes that where, for example, a judge is charged in her or his own jurisdiction by the law enforcement agency that is prosecuting another case before the judge, or the judge’s lawyer in the criminal case in which the judge is charged appears before the judge on other cases, the judge should recuse, regardless of the judge’s conclusion that she or he can remain impartial.‘ Length of time for continuing to recuse. The opinion also discusses the question of how long the judge should continue to recuse in such cases after the personal matter has been concluded. Disclosure issues. Finally, Formal Ethics Opinion Number 56 examines the issue of disclosure where the judge decides that disqualification is not 188 Cs}. Judges Assoc., Formal Ethics Opinion No. 56 (2006) pp. 4-5 (Handbook Appendix D). 157 Cal. Judges Assoc., Formal Ethics Opinion No. 56 (2006) p. 4 (Handbook Appendix D). noeSFT EEE EE SE required based on the triage described above. Handbook section 7.73 et seq. discusses the rules concerning non-disqualifying disclosure Conclusion. The thinking process suggested in Opinion 56 helps in evaluating any sort of life event experience in relation to disqualification such as: judge or family member were victims of a similar crime, victim of an injury similar to that in a case," involved in similar civil litigation, or involved in divorce litigation. Membership in a group based on racial, ethnic, religious, sexual or similar group is not a basis for disqualification. The fact that a judge “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” is not a grounds for disqualification." Thus, a judge who has a same-sex partner is not disquali- fied and need not even disclose this fact in a case involving a claim of sexual orientation discrimination." If, however, the judge concluded that he or she could not be fair and impartial in the case due to the content of the matter, disqualification would be required. 8. Judge’s Relationships With Attorneys, Parties and Others in Proceedings a. [§7.37] Former Clients of Judge Associated With Judge What are the disqualification requirements whi judge or of lawyers with whom the judge was associé a party in the present case before the judge? Note that, before the judge was associated in private practice ee years, the judge would be disqualified and there woukks : any issue regarding the party." SL Se a Manta The following are the statutory rules related to thejucge*sractoi sehett=— relationship to the party in the case before the judge. A judge is disqualified in any of these situations: (1) Judge served as lawyer for a party in the present proc judge “served as a lawyer for any party in the present procee ie 138 Cal. Judges Assoc., Judicial Ethics Update (2003) p. 2, indicates that a judge need not recuse but should disclose a family member's illness if a party has the same illness and illness is a pivotal issue in the case. Again, the decision should rest on the more extensive type of analysis suggested in Formal Ethics Opinion No. 56. 15 Code Civ. Proc. $170.2, subd. (a). 10 Cal. Judges Assoc., Judicial Ethics Update (2006) p. 2. 161 See Handbook section 7.41 and Code Civ. Proc., § 170.1, subd. (a)(2)(B)(i). 162 Code Civ. Proc., § 170.1, subd. (a)(2)(A). 338Ch. 7 DISQUALIFICATION §7.37 2) Judge gave advice to a party in present proceeding. The judge “gave advice to any party in the present proceeding upon any matter involved in the action or proceeding.” 3) A party was the judge’s client. “A judge shall be deemed to have served as a lawyer in the [present] proceeding if within the past two years: (i) A party to the [present] proceeding . . . was a client of the judge when the judge was associated in the private practice of law ... .” (4) An officer, director, or trustee of a party was the judge’s client. “A judge shall be deemed to have served as a lawyer in the [present] proceed- ing if within the past two years: (i) ... an officer, director, or trustee of a party was a client of the judge when the judge was associated in the private practice of law . .. .”"*> (5) A party was a client of a lawyer with whom the judge was associated in_ private practice. And, finally, “[a] judge shall be deemed to have served as a lawyer in the [present] proceeding if within the past two years: (i) A party to the [present] proceeding ... was ... # ¢lient of a lawyer with whom the judge was associated in the private pfactice of law." Meaning of the “past two years.” The term “within the past two years” must refer to a period that runs backward from the present moment when the disqualification decision is being addressed. It is not two years before the judge took office.” The obvious purpose of the two-year rule is @ have a point in time where the judge would no longer be required to recuse. Consideration of disqualification after the two-year period regarding former clients. The question arises whether the judge should continue to disqualify herself or himself after the two-year period. The two-year limitation period is designed to assure that there is some end to disqualifying circumstances after the passage of time, and to avoid unnecessary disqualification. Therefore, judges should not continue to recuse beyond two years with regard to former clients unless there is some special reason to do so, or the relationship was such that the judge is unable to be impartial ir- respective of the passage of time. "63 Ibid. 14 Code Civ. Proc., § 170.1, subd. (a)(2)(B)(i). 165 Ibid. ‘66 Ibid. ‘e7 Although the matter is not directly addressed, Urias v. Harris Farms, Inc. (1991) 234 Cal.App.3d 415, 426, is consistent with this view.3/98 CALIFORNIA JUDICIAL COUNDUUCT THANUBDUUR fhe A cautionary note - disclosure. Even after two years, although the judge may no longer be required to recuse, he or she should continue to disclose the relationship of former clients for some reasonable period.'®* Waiver of disqualification. Disqualification cannot be waived, where the judge “served as an attorney in the matter in controversy, or the judge has been a material witness concerning [it].”" In all other situations igeussed above, disqualification can be waived, provided the judge is not biasest atid is willing to accept the waiver.” If the former client is a witness tefage the court, the judge is not required to recuse, but should disclose the relationship." b. [§7.38] Former Adversaries of Judge Occasionally a judge will see a party in court that the judge had sued or prosecuted before becoming a judge. In such a situation, absent actual bias, the judge is not required by any of the specific provisions in Code of Civil Procedure section 170.1 to disqualify himself or herself. A judge should, however, consider whether the particular circumstances of the prior case and contact with the party was such that disqualification is appropriate under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii). Only after conclud- ing that disqualification is not necessary would disclosure be necessary. In cases where the judge, before becoming a judge, opposed a lawyer in a proceeding, the judg ot required to either disclose or disqualify, there be- ing no basis to de'gstgless the circumstances are unusual, or the judge is biased against the Seeuet! adversary. 168 See Com. on Jud. Performance, Ann, Rep. (1993), Advisory Letter 23, p. 19. In Inquiry Concerning Judge Di Figlia a judge was assigned a case in 1999 (the date becomes important). Plaintiffs counsel “filed an application requesting information about the judge’s relationship with the Office of the San Diego City Atorney, where the judge had worked at one time.” The City of San Diego was apparently a party in the case. The judge made no response to the request. The comnission’s decision did not set out any details concerning when the judge took office or was eztpioyed with the city attorney’s office. In the portion of the decision making findings on otfter issues in the case, the commission added this paragraph: “Judge DiFiglia’s failure to disclose on the record his past employment with the city attomney’s office also was contrary to canon 3E(2).” Com. on Jud. Performance, Ann. Rep. (2007), Public Admonishment. The material cited above is in the full decision of the commission issued on January 9, 2007, pp. 1-2. This decision does not explain the matter further, and it is my view that, without something more, the commission’s decision is not well founded. If, for example, the judge had been on the bench since 1987 (which may have been the case here), the fact that the judge was an attorney in a public law office more than 12 years earlier would not require disclosure unless there is some additional factor. There must come a time when such past relationships are just not “relevant to the question of disqualification.” (Cal. Code Jud. Ethics, canon 3E(2).) 16 Code Civ. Proc, §§ 170.1, subd. (a)(2) and 170.3, subd, (b)(2)(B), and see Cal. Code Jud. Ethics, canon 3E(5)(f) for similar rule related to justices. See Handbook section 7.24. 17° Code Civ. Proc., § 170.3, subd. (b)(2)(A). ‘7! Cal. Judges Assoc., Judicial Ethics Update (1997) p. 3. 340,Ch.7 DISQUALIFICATION §7.40 c. [§7.39] Attorneys Representing the Judge in Private Matters No express language in Code of Civil Procedure section 170.1 requires a judge to recuse where a lawyer in the proceedings before the court either cur- rently represents the judge or did so in the past, even in personal matters.” In this situation, Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) requires disqualification of the judge where one of the lawyers currently represents the judge since “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” This duty to recuse would continue for a reasonable period of time after conclusion of the attorney-client relationship.”° Two years would seem to suffice as a reasonable period for continuing to recuse based on Code of Civil Procedure section 170.1, subdivision (a)(2)(B), unless the circumstances are such as to warrant @ longer period. A judge was advised that recusal was required when the lawyer represent- ing the judge’s son appeared in the judge’s court and, moreover, the judge should disclose the fact for two years after the representation of the son is concluded.' In all of these situations, disqualification may be waived. d. [§7.40] Attorneys Representing the Court or the Judge in Non-Private Matters Judicial officers and the courts in which they sit are occasionally sued in their official capacities for judicial and administrative actions. When attorneys or law firms who represent the judge or the court in their official capacities or who represent parties suing the judge or the court appear on other cases, what are the judge’s disqualification and disclosure obligations? Government Code section 811.9, cnacted in 2000 and amended in 2005, contains two provisions relevant to this discussion. Counsel who represent the court or judge. The Judicial Council is required to “provide for representation, defense, and indemnification of” judges and subordinate judicial officers, among others in the judicial system. Although the '? See Handbook section 7.40 for situations where the judge is represented in his or her official capacity. 173. Com, on Jud. Performance, Ann, Rep. (1994), Advisory Letter 3, p. 18, involving a situation where the attomey performed legal services for the judge six months earlier. See also Com. on Jud. Performance, Ann, Rep. (1983), Private Admonishment, p. 10; Com. on dud, Performance, ‘Ann. Rep. (1989), Private Admonishment E, p. 21 174 Cal. Judges Assoc., Judicial Ethics Update (2005) p. 2. See Cal. Judges Assoe., Formal Eth- ics Opinion No. 45 (1997) p. 5 (Handbook Appendix D). An unrelated portion of Forraat Bthies Opinion No. 45 was redacted in Formal Ethics Opinion No. 55 (2006) p. 2 €Handbook Ap- pendix D).§7.40 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 Council is required to look to county counsel and the Attorney General for such representation, county counsel and the Attomey General are not required to provide it." As a result, the Office of the General Counsel of the Administrative Office of the Courts provides representation for the court either by retaining the Attorney General’s office or securing private outside counsel. The fact that a lawyer representing the judge or the court appears before the judge, without more, does not require disqualification. “\.. The fact that a justice, judge, subordinate judicial officer, court executive officer, court employee, the court, the Judicial Council, or the Administrative Office of the Courts is or was represented or defended by the county counsel, the Attorney General, or other counsel shall not be the sole basis for a judicial determination of disqualification of a justice, judge, subordinate judicial officer, the county counsel, the Attorney General, or other counsel in unrelated actions.” The only question is whether there is a circumstance in which “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial’"”’ and, therefore, this section eliminates disqualification absent such a circumstance. The other sorts of circumstances which a judge should consider are discussed in this section. Litigation against the court - where judges may be named as part of the suit. Formal Ethics Opinion No. 54 (Handbook Appendix D) provides an analysis concerning disqualification where the presiding or supervising judge of a court, the court executive officer or the court is being sued and the court’s attorney or the attorney (or others in the attorney’s law firm) representing the party suing the court appears in another case before a judge of that court. The - opinion focuses on the question of the level of involvement of a particular trial judge in the litigation, (1)_Judge is directly involved in management of the litigation and the at- {omney representing the court or party suing the court appears. Where a judge is involved in “the management or direction of the lawsuit, working with the Court’s attorney and not through an intermediary, the judge should disqualify himself or herself in any unrelated matter in which the attorney representing the Court or [representing] a party suing the Court, or any member of the law firm or organization working on the lawsuit, appears.” The disqualification is required through the pendency of the lawsuit involving the court, and disclosure of the circumstances is required for two years thereafter. (Formal Ethics Opinion No. 54 (2005) p. 2, Handbook Appendix D). 175 Gov. Code § 811.9, subd. (a). 176 Gov. Code § 811.9, subd, (a). ‘7 Code Civ. Proc., § 170.1, subd. (a)(6)(A\(iii). 342Ch. 7 DISQUALIFICATION §7.40 (2) Judge is directly involved in the management of the litigation and another attorney from the law firm appears who is not involved in the lawsuit. Where a member of the law firm or Attorney General’s office appears before a judge, but that particular lawyer is not involved in representing the court or suing the court, the judge is not required to disqualify himself or herself, but must disclose the matter pursuant to canon 3E(2). (/bid.) (3) Judge is aware he or she is named in the suit in an administrative capacity but not involved in management of the litigation. A judge who is personally named in the litigation in his or her administrative capacity, but has no part in the management or direction of the litigation, although aware of the parties and attorneys involved, is not required to recuse, but should disclose the fact in any unrelated matter coming before the judge where the attorneys representing the court or a party suing the court or a member of the law firm or law organization working on the suit appears as attorney of record, (/d. at pp. 2-3.) (4) Judge has no involvement in the management of the litigation and is not named. A judge of the court who has no involvement in the manage- ment or direction of the case is not required to recuse or to disclose the lawsuit when a lawyer involved in the litigation appears in an unrelated case, “unless the existence of the lawsuit or other circumstances would lead a reasonable person to believe that the judge would be unable to be impartial.” (/d. at p. 3.) Litigation against a judge in an official capacity related to exercise of judicial functions. Formal Ethics Opinion Number 54 does not address the is- sue of disqualification where a judge was or is a party in a case arising out of the judge’s exercise of his or her judicial functions (e.g., an adjudicative act),"* and counsel before the judge either represented (or represents) the judge or the party adverse to the judge. There does not appear to be a case on this subject in California. In such a situation, the judge would want to review the factors discussed in Formal Ethics Opinion Number 54, Code of Civil Procedure, section 170.1, subdivisions (a)(6)(A)(i) to (iii), and the discussion of cases outside California by Richard E. Flamm.” In looking at this issue, it is worth noting that because such cases do not ordinarily involve personal conduct of the judge outside the judge’s judicial capacity, reasonable or substantial doubts as to the capacity to be impartial would be less likely, especially where the judge was or is represented by a government law agency such as the Attomey General’s office, and provided that the judge is not embroiled in the matter such that his or her fairness and impartiality are compromised, "78 See brief discussion of immunity in Handbook section 6.29. 1 Flamm, Judicial Disqualification: Recusal and Disqualification of Judges (Banks and Jordan, 2007), § 8.5, pp. 209-213.Shak LALIPORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 If a judge concludes that recusal is not required, the judge must always examine the need for disclosure. Litigation against the judge for acts not in the judge’s judicial capacity. Where an attorney appears in a case who is or was the judge’s counsel, or a lawyer representing the claimant suing the judge for actions outside the judge’s judicial capacity: 4¢.,< employment discrimination or sexual harassment), the judge should éxamine the authorities discussed above. This issue is not directly discugsé#!-%s Formal Ethics Opinion Number 54, and there appears to be no California case on the subject. Because this sort of litigation relates to the judge’s personal conduct, where there is a potential for personal consequences, including judicial discipline, “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Judge as subject to Commission on Judicial Performance actions. When counsel (or counsel's law firm) representing a judge in a matter before the Commission on Judicial Performance appears, the judge should recuse himself or herself. This matter is sufficiently personal that the analysis in Handbook section 7.39 would apply. The judge need ne, znd probably should not, state the reasons for disqualification in this situation. e. [87.41] Attorneys or Law Firms ¥ith Whom Jaage Was Previously Associated Disqualification for two years. A judge is disquelified far a iave-year period from hearing cases where “a lawyer in the proceeding was associated in the private practice of law with the judge.”"" This rule does not apply if the judge “served as a lawyer for or officer of a public agency that is a party to the proceeding” uniggs the judge “personally advised or in any way represented the public agency concerning the factual or legal issues in the proceeding.”"*? Where the judge was involved in “the proceeding,” the disqualification rules are the same as noted in Handbook sec- tion 7.36. Fot example, if a judge, as a prosecutor, signed the search warrant application ix the case or was the direct supervisor approving the filing in the case, the judge would be disqualified. A judge who shared office expenses with an attorney before becoming a judge is disqualified in all cases involving that attorney for a two-year period." +8 Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii). '8! Code Civ. Proc, § 170.1, subd. (a)(2)(B)(ii). 182 Code Civ. Proc., § 170.1, subd. (a)(2)(C). '83 Cal. Judges Assoc., Judicial Ethics Update (2002) p. 2. 344,ch.7 DISQUALIFICATION §7.42 This advice helps clarify the meaning of “associated in the private practice of law.” A judge who shared office space as a Deputy District Attorney 81/2 years earlier, with no contact in the intervening years, with a deputy who now ap- pears before the judge, is not disqualified nor required to make disclosure given the time that has elapsed." The Ethics Committee has advised that where a judge retains an interest in a former law firm’s pension plan, and the plan's assets fluctuate daily and the judge has neither knowledge of those assets nor management. 2aitority or control over them (or the plan), the judge is not disqualified, but “sist disclose the prior firm affiliation.”"** . Disclosure beyond two years. A judge was disciplined for not disclosing a legal partnership relationship that was “somewhat more than two years earlier” involving a lawyer appearing before the court. The commission zecognized that the judge was “not automatically disqualified” under the #iycumstances but, nonetheless, determined that disclosure was required, his decision of the commission makes it clear that judges must continue to be cautious in handling matters with lawyers or law firms with whom the judge was associated for a period well beyond two years. f. [§7.42] Attorneys Who Provide Pro Bono Services to Court There is normally no reason for a judge to disclose or disqualify where an attorney appearing before the judge also contributes his or her time to the judge’s court as a temporary judge or a court-appointed arbitrator or mediator, Thousands of lawyers volunteer their time in the courts of California, serving as temporary judges in small claims courts and other assignments on a regular basis. Such services benefit the public in providing adjudicative services in an expeditious manner, and also free up judges for ether work. The practice is so widespread and common that anyone aveare:of the circumstances could not regard such service as a grounds for, Ssastidiiy, “impairing the ability of the ' Cal, Judges Assoc., Judicial Ethics Update (2606) p."T. Buit see Inquiry Concerning Judge Di Figlia, Com. On Jud. Performance, Ann. Rep. (2007), Public Admonishment, full decision of the commission issued on January 9, 2007, pp. 1-2. '*S Cal, Judges Assoc., Formal Ethics Opinion No. 45 (1997) p. 5 (Handbook Appendix D). An unrelated portion of Formal Ethics Opinion No. 45 was redacted in Formal Ethics Opinion No. 55 (2006) p. 2 (Handbook Appendix D). "© Com. on Jud. Performance, Ann. Rep. (1993), Advisory Letter 23, p. 19.§7.43 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 lawyer to practice before the courts in which the lawyer occasionally sits as a temporary judge." g. [§7.43] Parties or Attorneys Against Whom Judge Has Formed a Favorable or Unfavorable Bias Recusal for actual prejudice. Obviously, a judge who is biased against a party or an attorney’ must recuse, and failure to do so is misconduct. Dealing with opinions and impressions about lawyers. After observing lawyers in court, or even experiencing a lawyer's conduct in a particular case, a judge might develop an opinion that a particular lawyer is dishonest or engages in questionable practices. On the other hand, a judge may have come to believe, through experience with a lawyer, that the lawyer is honest and his or her representations of law or fact are reliable. If a judge forms such opinions about lawyers, is the judge required to recuse or disclose these opinions? Judges hear and see all sorts of conduct in their courts, and are still expected to perform the extraordinary task of maintaining exquisite impartiality. It is a judge’s job to be aware of biases and put all biases aside in every case and, in every case, base their decisions only upon what is presented in that case." = Moreover, absent some” sg ‘cumstances, a judge is not required to undertake what could bé-a% sedless burden of disclosing all of his or her thoughts and experiences swift. ‘ety lawyer who appears in court. See Handbook section 7.72 "4 diseussion as to when a judge is required to provide disclosures. In the event the judge cannot perform the task of maintaining impartiality concerning a particular lawyer, however, the judge must recuse. Reporting a lawyer to the State Bar. Occasionally, judges are required to take severe measures toward lawyers (i.c., sanctions, contempt, reporting to '87 In Cal. Judges Assoc., Judicial Ethies Update (2001) p. 3, the Ethics Commitee gave advice contrary to the above. The committee told a judge that although not disqualified, the judge must disclose where “[a]n attorney serves pro tem in judge’s court and a member of the attorney’s law firm appears before judge.” I believe this advice is incorrect and, moreover, would impose an unreasonable burden for judges to know which lawyers perform numerous pro bono servise for the courts. Unless there is some other relationship with the lawyer or factor that $4338, mentioned in this informal advice, a judge has no duty to disclose or recuse. No one, await of"! the facts, would reasonably entertain a doubt that the judge would be able to be impartial in such a situation, and thus the information is not relevant to the issue of disqualification, even under Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii). 188 Code Civ. Proc., § 170.1 ubd. (a)(6)(A)(ii). '® Code Civ. Proc., § 170.1, subd. (a)(6)(B) provides that “[b]ias or prejudice toward a lawyer in the proceeding may be grouixy fitisqualification.” '° Flamm, Judicial Disqualificeeigee Becusal and Disqualification of Judges (Banks and Jordan, 2007), § 4.2, p. 84. ms 346ch.7 DISQUALIFICATION §7.45 the State Bar and even reporting to law enforcement)." So long as the judge is able to put aside any bias and is able to remain impartial, the fact that a judge performed a judicial duty related to the lawyer’s conduct is not a basis for disqualification were the lawyer to appear before the judge in the future or in a proceeding that is ongoing.” It may, however, be appropriate to disclose the matter in any proceeding where the lawyer appears before the judge. h. [§7.45] Spouse and Other Family Members - Activities as Lawyers Where a “lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge’s spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding,” the judge is disqualified." Note that this rule does not require disqualification where the lawyer or spouse of the lawyer is within the third degree of relationship to the judge. A judge whose adult child is employed as an attorney by a law firm is disqualified when that firm appears before the judge."® Where a judge’ s daughter-in-law is employed as a lawyer in a law firm that appears before the judge, although the relationship is not specified as a grounds for disqualifica- tion," disqualification would normally be required because “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”""” A judge was disciplined where a litigant mentioned in court that a certain attorney had given the litigant advice and information, prepared the judgment which the judge was being asked to sign, and had represented this litigant in previous cases. The attorney was in fact the judge’s child and the judge did not disclose this fact.'% '" See Cal. Code Jud. Ethics, canon 3D(2). '* Code Civ. Proc., § 170.2, subd. (b) provides that the judge’s expression of views “on a legal or factual issue presented in the proceeding” is not a ground for disqualification. '°8 Code Civ. Proc., § 170.1, subd. (a)(5), and see Cal. Code Jud. Ethics, canon 3E(5)(e) for similar rule related to justices. '°* For discussion of issues related to disqualification where a spouse or family members engage in other activities, see Handbook section 7.46. This section also contains an explanation of the “third degree of relationship.” "5 Code Civ. Proc., § 170.1, subd. (a)(5). '96 Thid. "7 Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii). '°8 Com, on Jud. Performance, Ann. Rep. (1992), Advisory Letter 10, p. 14.eh d é bahay egdzee of a law firm. A judge should recuse where his or fies epttuad pronked.§ Wise case as.an, independent secretary/paralegal.'” Ba Hh pope disqualified. if the judge’s spouse, as a non-lawyer eenplos ah Healt, bid no coiizet with the case before the judge? Because ; therg 4 st ce} Feqyrirement for disqualification solely based on the fact dial’ a. faiegity etlugerijser i@ employed as a non-lawyer in a law firm appearing + Bak ‘the } e@euigal would rest both on the interests of justice, Code of 4 bakagin #9%'470.1, subdivision (a)(6)(A)(i), as well as the objective statidard! widerlstetiow 170.1, subdivision (a)(6)(A)(iii). This result would ia ‘siti probably also be mandated where a family member residing in the judge’s household was so employed. + Where, however, a family member does not reside in the judge’s zsehold and is so employed, disqualification would depend on a variety of other considerations: the relationship of the family member to the lawyers involved in the case, whether the family member’s position with the firm could be jeopardized by the court’s decision, the ability of the judge to assure that there will never be any communications with the family sezber concern- ing the case, and other factors. If the judge concludes thas dssqttalification is not required, however, disclosure of the circumstances of tie employment would be necessary. Where a family member is associated with a law firm appearing before the judge. As already noted, Code of Civil Procedure section 170.1, subdivision (a)(5) requires disqualification where the lawyer in the case before the judge is a member of the judge’s family “or if such a person is associated in the private practice of law with a lawyer in the proceeding.”(Italics added.) This rule, accordingly, requires disqualification even though the family member has no involvement in the case. Family members beyond those described in section 170.1, subdivision (a)(5). If the family member is not a spouse, former spouse, child, sibling, or parent of the judge or the judge’s spouse, disqualification is not required. Thus, for example, if a cousin, aunt or uncle, or grandparents appear as counsel in the case, although not disqualified under Code of Civil Procedure section 170.1, subdivision (a)(5), is the judge obliged to recuse? California Judges Association Formal Ethics Opinion No. 51?" indicates that disqualifica- tion may be appropriate under Code of Civil Procedure section 170.1, subdivi- sion (a)(6). The purpose of clear definitions of the grounds for disqualification is, in part, to require judges to hear cases unless disqualified. Thus, under this 1 Cal. Judges Assoc., Judicial Ethics Update (1997) p. 3. 200 Code Civ. Proc., § 170.1, subd. (a)(5) requires disqualification only where the family member is associated as a lawyer in the practice. 201 Cal. Judges Assoc., Formal Ethics Opinion No. 51 (2001) p. 4 (Handbook Appendix D). 348Ch. 7 DISQUALIFICATION §7.45 theory a judge should sit on a case where his or her grandfather is the attorney for a party. This, of course, makes no sense, and the Ethics Committee wisely indicates that the judge should certainly consider recusal. It would appear that in such a case recusal would be required by the general standard set out in Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii). Even were a judge, for some reason, to insist on sitting where a family member, regardless of the degree of relationship, appears as counsel, disclosure of the relationship would be mandatory, provided, of course, that the judge knows of the familial relationship. Judge’s spouse’s law firm also represents a party in the case in other matters, but not in the particular case before the judge. A judge has a case where a party in the case might also be a client of the judge’s spouse’s law firm, but the spouse’s law firm does not represent the client in the case pend- ing before the judge. This could happen in any case where a judge’s spouse is engaged in the private practice of law. Should the judge require that his or her spouse provide a list of all the firm’s clients so that the judge can know if a party is a client and if he or she needs to disclose or recuse?* The only specific provisions of the Code of Civil Procedure related to this question involve potential recusal where the judge’s spouse or a minor child in the judge’s household “has a financial interest in the subject matter in a proceeding or in a party to the proceeding” based on the fact that this family member had or has a professional relationship with a party. Because of a judge’s duty to “make reasonable efforts” to remain informed of the financial interests of himself and his or her spouse,2 can it be argued that this requires a judge to amass information from his spouse’s law firm concerning clients who might potentially appear in the judge’s court represented by someone other than the spouse or spouse’s law firm? The fact that a spouse, through her or his law firm, has a financial benefit in the party does not qualify as a "financial interest” within the definition of that term. A disqualifying financial interest is limited to ownership of legal or equitable interests in a party or “a relationship as director, advisor or other active participant in the affairs of a party .. .”° (Italics added.) Based upon these clear rules, the fact that a spouse is a vendor of services does not create a statutory “financial interest.” There is, therefore, no reasonable basis for a judge to gather client informa- tion, even if the spouse and spouse’s law firm could reveal such information. Moreover, the unreasonableness of the proposition disposes of any claim that 202 See Cal. Judges Assoc., Judicial Ethics Update (2000) p. 3 (Handbook Appendix D): “A judge need not require spouse’s law firm to provide a list of clients but a judge should disclose ‘any known clients of the firm.” 2° Code Civ. Proc., § 170.1, subd. (a)(3)(A) and (B). 2 Code Civ. Proc., § 170.1, subd. (a)(3)(C). 25 Code Civ. Proc., § 170.5, subd. (b).Bret NE OIE II IE III III I EE disqualification is required under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii). If a judge, for some reason, is aware of the spouse’s relationship to a party, disclosure would be appropriate. The value of disclosure is that if there is something in the case that might be related to what the spouse’s law firm did for the party, disclosure might smoke out the problem. This is an example of a remote and complex disqualification problem that illustrates the maxim: you can only do so much. Family member is a lawyer employed by a government lagoRite, Ag” already noted, Code of Civil Procedure section 170.1, subdivision {ax requires disqualification where the lawyer in the case before thes fax te member of the judge’s family. Thus, where a family member, as.{ei% this rule, is employed in a governmental law office and is not im #is “gebeate practice of law,” the legislature has made it clear that mere association in the government law office appearing is not a basis for a disqualification, and it would be incorrect for a judge to do so absent some other factor. Formal Ethics Opinion No. 517° focuses on a number of issues related to government employment of a family member as a lawyer.?” Disqualification required where the family member appears in the case. The judge would be disqualified where the family member: appears before the judge in the case; has involvement in the case at some level; or does not actu- ally appear, but his or her name appears on the pleading. Thus, where the fam- ily member is the district attorney, or the public defender, for example, the judge would be disqualified from hearing the case.” Disclosure required based on such employment even when disqualifica- tion is not required. The judge must disclose the fact that a family member is an employee of the government law office appearing before the court even where the family member had no involvement whatsoever in the case under submission.”° Where a judge’s family member is a lawyer in a government law office that regularly appears before other judges. Formal Ethics Opinion No. 51 206 Cal, Judges Assoc., Formal Ethics Opinion No. 51 (2001) 207 See Handbook section 7.46 and Cal. Judges Assoc., Form: (Handbook x D) for discussion of family member em that is a pag: eedings before the judge. 208 Where thie” member is a supervisory or higher chain22-s582e28-<2pacity relative to the person appearing in court, Formal Ethics Opinion No. 51 indicates that disqualification is based on Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii). Cal. Judges Assoc., Formal Ethics Opinion No. 51 (2001) p. 3 (Handbook Appendix D). 209 Formal Ethics Opinion No. 55, supra, p. 3 (Handbook Appendix D), Cal. Code Jud. Ethics, canon 3E(2), and see discussion in Handbook section 7.72 et seq. regarding disclosure. pendix D). No. 55 (2006) ernment entity 350Ch.7 DISQUALIFICATION §7.46 advises that, absent some other factor, other judges in a court are not disquali- fied simply because the spouse, or family member, of one of the judges in the county appears before them. Only where the nature of the relationship to the judge’s spouse or other family member goes “beyond professional contacts” would disqualification be required.” This analysis is similar to any situation where a judge is disqualified when a party or lawyer appears before the judge. The particular relationship between the lawyer and judge must be such as to require disqualification, aside from the lawyer's status as a family member of another judge. A mere professional relationship with either the spouse or the judge is not enough to disqualify, i, [$7.46] Spouse and Other Family Members - Activities and, Relationship to Cases and Justice System This section deals with disqualification issues raised by activities of a judge, spouse and certain family members that relate to the justice system or the case before the judge or the justice system. Note that Handbook section 7.57 deals with issues created by life events and experience of the judge and family members that impact disqualification, and Handbook section 7.45 deals with disqualification issues related. to activities of a spouse and other family members as lawyers. Judge, spouse or family member as a party or a relationship to party in proceedings. As previously noted (Handbook section 7.36), where the judge or the judge’s spouse “or a person within the third degree of relationship to either of them, or the spouse of such a Person is a party to the proceeding or an officer, director, or trustee of a party,” the judge is disqualified 2" All potential contacts with a party by a spouse or family member do not require disqualification. In United Farms Workers of America v, Superior Court, the activities of the trial judge’s spouse became the basis for a chal- lenge for cause in the midst of a trial. One of the issues on appeal was whether these activities, her working for a few days for the farmer who was a party in a labor strike, were grounds for disqualification.” The Court of Appeal held that the judge was not disqualified. “Becatise the factors in the present case do not point consistently either in favor of of against disqualification, we regard this as a very close issue. On one hand, the circumstances relied:wpas by the UFW in support of the motion do not involve Judge Lah#bardt directly. Rather, he is 2 Cal, Judges Assoc., Formal Ethics Opinion No. 51 (2001) p. 3 (Handbook Appendix D). *"" Code Civ. Proc., § 170.1, subd. (a)(4), and see Cal. Code Jud. Ethics, canon 3E(5)(e) for similar rule related to justices. 212 Note that the activity would not fit one of the specific rules for disqualification, but rather relate to disqualification under the general rules set out in Code Civ. Proc., § 170.1, subd. (a6).oes a =) eee eee Oe en ce or od suspected because of his wife’s activity. Whatever may have been true in years past, it is now simply impossible and unwarranted to treat women as mere shadows of their husbands’ identities. Judge Chaille’s [the judge ruling on the disqualification motion] denial of the disqualification mo- tion was based in large part on his understanding of this fact: ‘We do not live in colonial days where women’s employment is determined by men. .. . [W]omen [do not] have to have the consent of their husbands to do things.’ ””"? In matters involving family members, judges must disqualify themselves and have no further contact or involvement in the case.” Personal knowledge of disputed evidentiary facts in proceedings before the judge. As previously noted (Handbook section 7.36), where a judge or the judge’s spouse “or a person within the third degree of relationship to cither of them, or the spouse of such a person is to the judge’s knowledge likely to be a material witness in the proceeding,” the judge is deemed to have personal k; e of disputed evidentiary facts in a case and is, therefore, disqualifies Employment in an agency connected to the judicial system. If the judge’s spouse is a police officer, and the agency for which the spouse works is involved in an investigative capacity in a case before the judge, that fact should be disclosed, but it does not disqualify the judge. However, were the spouse to be personally involved in the investigation, management, or prosecu- tion of the case before the judge at any level, disqualification would be required. A judge is also not disqualified from handling criminal cases where a spouse is employed as a director of victim services for the District Attorney’s Office," although that fact should be disclosed. Where the judge’s spouse practices law specializing in the area of law involved in the case before the judge, the judge is not disqualified and need not disclose that fact.2” 2!3 United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 105. 24 See Com. on Jud. Performance, Ann. Rep. (1983), Private Admonishment, p. 8; Com. on Jud. Performance, Ann. Rep. (1988), Advisory Letter 30, p. 14 where a judge failed to disqualify himself or herself in a matter involving a family member; Com. on Jud. Performance, Ann. Rep. (1999), Advisory Letter 29, p. 24; Inquiry Concerning Judge Hyde, Com. on Jud. Performance, Ann. Rep. (2003), Removal from Office, p. 20, where a judge involved himself in a small claims case in which his daughter was a party. 218 Code Civ. Proc., § 170.1, subd. (a)(1)(B), and see Cal. Code Jud. Ethics, canon 3E(5)(f) for similar rule related to justices. 26 Cal. Judges Assoc., Judicial Ethics Update (1997) p. 3. 27 Id. at p. 4. 352Ch. 7 DISQUALIFICATION §7.46 Where the judge’s family member is an employee of a government agency that is a party.?" In the following discussion, it is assumed that the judge’s family member, who is employed by a governmental entity, has no relationship to the particular case before the judge. Thus, the only issue is the fact of the relative’s employment alone requires a judge to consider disquali- fication. Absent some additional factors, the employment of a family member by a government entity that is a party to a case before the judge does not require recusal. Involvement in the litigation. As pointed out already, if the family member is directly or indirectly involved in the case itself that is before the court, or is in the chain of command of those who are directing or involved in the case, recusal would be necessary in that “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”* As already noted in Handbook section 7.36, personal knowledge of the case or being in the position of a potential witness are also disqualifying circumstances,” General_ grounds for disqualification. A possible theoretical circumstance exists where the financial impact on the entity of a decision by the judge might impact the employee/family member through potential loss of employ- ment, decrease in salary or the like. Formal Ethics Opinion Number 55 however, points out that in most cases “an adverse judgment would not endanger the financial well-being of a government entity, and any negative financial consequences to the family member would be so attenuated that no reasonable person would doubt the judge’s ability to remain impartial.”** Accordingly, such potential financial impacts are unlikely to ever require recusal. Emancial interests - where a spouse is employed by governmental entity that is a party. Where the government entity that is a party in a case before the judge is the employer of a judge’s spouse, a judge would have a disqualifying financial interest based on the spouse's employment under these circumstances: (1) The judge, judge’s spouse or minor child living in the judge’s household owns government bonds issued by the party and the outcome of the 218 The Second Edition of the Handbook erroneously stated that disqualification is required where the judge’s spouse is an employee of a government agency that is a party to the proceedings. Rothman, Cal. Jud. Conduct Handbook (1999) p. 200. The ethics opinion on which this statement was based has been stricken and replaced. This statement was based on Cal. Judges Assoc., Formal Ethics Opinion No. 45 (1997) p. 5 (Handbook Appendix D). In March 200%, Gal. Judges Assoc., Formal Ethics Opinion No. 55 (2006) p. 2 (Handbook Appendix D) striekz this portion of Formal Ethics Opinion No. 45. 219 Code Civ. Proc., § 170.1, subd. (a)(6)(A)fii). 229 Cal. Judges Assoc., Formal Ethics Opinion No. 55 (2006) pp. 3-4 (Handbook Appendix D). 221 Jd. at p. 3.3/.40 LALIPORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 proceeding could substantially affect the value of the judge’s bonds. (Canon 3E(3) and see Handbook section 7.31.) (2) The judge’s spouse or minor child living in the houschold has a relationship to the governmental party as a “director, advisor or other active participant in the party’s affairs” (Code of Civil Procedure sections 170.1, subdivision (a)(3) and 170.5, subdivision (b)), or a spouse, or person within the third degree of relationship to the judge or spouse, or spouse of such a person, is an officer, director or trustee of the government entity (Code of Civil Procedure section 170.1, subdivision (a)(4)). Formal Ethics Opinion Number 55 advises that the level of involvement that would tigger consideration of disqualification in the context of a financial interest would be one where the position of the person with the above-described relationships “requires the individual to advise on, or actively participate in, the major activities or policy decisions of the government entity.” Disclosure. Where a judge determines that he or she is not disqualified, the employment of the family member by a party that is a government entity should be disclosed in the proceedings. Political activity of family member. A family member’s political activi- ties, including running for office, supporting non-judicial candidates, engaging in fund raising, and so on, could raise issues of impartiality requiring a judge to disqualify where a party, attorney or case related to these activities comes before the judge. Explanation of the “Third degree of relationship.” The term “third degree of relationship” is used in Code of Civil Procedure sections 170.1, subdivision (a)(1)(B) and 170.1, subdivision (a)(4) and canon 3E(5)(e) and (f). According to Code of Civil Procedure section 170.5, subdivision (d), “the third degree of relationship shall be calculated according to the civil law system.” There is no current statutory definition of “degrees of relationship,” leav- ing the dozen references to the “second” and “third degree of relatisaship” in California codes and canon 3K(5)(e) without a statutory definition. In Robin- son v. Southern Pacific Co., a party sought the disqualification of Stipreme Court Justice W.C. Van Fleet based on the claim that the judge’s wife’s first cousin was a shareholder of Southern Pacific and had become a relative by reason of marriage. In rejecting the claim, the Supreme Court quoted the ®? Although Formal Ethics Opinion No. 55 includes the word “judge” in regard to this part of the opinion, I have removed the word “judge” because it is highly unlikely that a judge could legally hold such a position in a governmental entity based on the provisions of Cal. Const., art. VI, §17. See Handbook section 10.01. ®8 Cal. Judges Assoc., Formal Ethics Opinion No. 55 (2006) pp. 2-3 (Handbook Appendix D). 4 Cal, Code Jud. Ethics, canon 3E(2). 354Ch. 7 DISQUALIFICATION §7.50 definition of degtess'of relationship in then existing Civil Code section 1393: “ ‘In the collaterti tine the degrees are counted by generations from one of the relations up to the’common ancestor, and from the common ancestor to the other relations. In such computation the decedent is excluded, the relative included, and the ancestor counted but once. Thus, brothers are related in the second degree; uncle and nephew in the third degree; cousins-german in the fourth, and so on.’ "* This definition, based on a repealed statute, was applied by the Supreme Court as the definition of the “third degree of relationship” in People v. Williams.” It is worth noting in the following chart that cousins and great aunts and great uncles are in the fourth degree of relationship. Civil Law System Calculation of Third Degree of Relationship: 3d degree = Great-grandparent 1 _____2d degree = Grandparent | 3d degree = Aun/Uncle 1X degree I 2d degree = Sister/Brother | | 3d degree = Niece/Nephew ! JUDGE or SPOUSE 1 I 1 degree = Chitd \ 2d degree = Grandehild | 3d degree = Great-grandchild j- [87.50] Romantic Involvement This section covers all romantic relationships, including living together. The section does not deal with issues relating to registered domestic partners because such a person would be in the same position as a spouse regarding is- sues of disqualification and disclosure. 28 Robinson v. Southern Pacific Co. (1895) 105 Cal. 526, 557. 26 People v. Williams (1997) 16 Cal4th 635, 651, 652-653. In Williams, the disqualification was unsuccessfully sought because the judge’s “oldest daughter's husband's nephew" was a wit- ness, a fact that the judge disclosed at the outset of the case.§751 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 The judge who is dating has a number of difficult problems, including disclosure, disqualification, gifts, and even potential limits as to whom it is ap- propriate to date. Disqualification issues can come up regarding dating relation- ships with witnesses, parties, attorneys, members of the attorneys’ firms, employees in the firms, and so forth. Whether a relationship requires disqualification or disclosure is a question of the degree of the relationship. Has the relationship moved from that of an “acquaintance” into that of a person who is within the inner circle of the judge’s intimate friends? Any dating relationship, however, would at least necessitate disclosure for a reasonable period of time following the “date.” Where the relationship goes beyond a “date,” disqualification is required. For example, a judge should recuse where the law partner of the judge’s “roommate” appears in court. Examples of situations where the issue has come up. A judge in a criminal assignment who has a romantic relationship with a deputy district at- torney in the county who does not appear in the judge’s court is obliged to disclose the relationship in cases, but is not disqualified.” It must be assumed from this advice that the judge is obliged to make the disclosure in every criminal case where the district attorney’s office appears. Obviously, the judge would be required to recuse himself or herself in cases where that attorney ap- peared before the judge.”* A judge who had a prior romantic relationship (“cohabitation”) with an attorney in a law firm that appears before the judge is obliged to disclose this fact, although the judge is not disqualified.” k. [§7.51] Social Friendships The test for disclosure and disqualification in social friendships is similar to that which one might employ with respect to a dating relationship: is the relationship that of a mere “acquaintance,” in which case even disclosure is questionable, or is the person within the inner circle of the judge’s intimate friends, such that disqualification is required? Between these extremes are the variables, where the relationship gradation moves closer to clear disclosure and then to clear disqualification. The circumstances might also be such that, whereas the judge might not even consider disclosure of an acquaintanceship 227 Cal. Judges Assoc., Judicial Ethics Update (2001) p. 2. 228 See Cal. Judges Assoc., Judicial Ethics Update (2000) p. 3. 229 Cal. Judges Assoc., Judicial Ethics Update (2001) p. 2. 230 For instance, a judge would not be required to recuse where he or she is an active member of a sports or social group with an attorney who appears before the judge. Disclosure, however, would be required. Cal. Judges Assoc., Formal Ethics Opinion No. 45 (1997) p. 4 (Handbook Appendix D). 356Ch. 7 DISQUALIFICATION §7.51 with an attorney appearing in court to represent a ‘ellen, the judge might re- cuse where the attorney is personally a party in the eas For a discussion as to whether there is any distinction between a small or large community in regard to disqualification and disclosure, see Handbook section 7.65. In summary, there is not a difference. Relationships with non-lawyers. Judges have been disciplined on a number of occasions for acting in cases that involve friendship, or for failing to disclose in such circumstances. Usually, in such cases, the judg’ gigo took some action in the case that was favorable to the friend. These situations include dismissing a criminal case against the son of a friend, reducing a charge involving the nephew of a friend and political supporter," releasing the stepdaughter of a friend after another judge had denied a motion seeking same, failing to disqualify in a case involving a friend,** and taking lenient action on speeding tickets involving the daughter of an assemblywoman.2* A judge was removed from office for, among other things, presiding in a case involving the nephew of the judge’s close friend. The judge also discussed the case with the friend and attempted to persuade the district attorney to lower the charges during a pretrial conference, without disclosing the relationship.> Relationships with lawyers. A judge went oa a group cruise with an at- torncy, attended several small group dinners’ ith him, and allowed the at- torney to pay for two lunches with the judge and his staff. The judge was disciplined for failing to disclose the relationship, or disqualify himself because of the relationship, whea.the attorney appeared before the judge. A judge was also discigitined for receiving gifts from attorney friends that were, for the most part, Within the bounds of “ordinary social hospitality.’*” 23! Spruance v. Commission (1975) 13 Cal.3d 778, 789-793. 232 Inquiry Concerning Judge Schmidt, Com. on Jud. Performance, Ann. Rep. (1989), Public Reproval, pp. 17-18. 233 McCullough v. Commission (1989) 49 Cal.3d 186, 192-194. 2 Inquiry Concerning Judge Clark, Com. on Jud. Performance, Ann. Rep. (1989), Public Re- proval, p. 17. The material noted in the text is in the full decision of the commission issued on September 27, 1989, p. 1. 25 Doan v. Commission (1995) 11 Cal.4th 294, 320-323, And see Inquiry Concerning Judge Wasilenko, Com. on Jud. Performance, Ann. Rep. (2005), Public Censure and Bar, pp. 18-19; Inquiry Concerning Judge Danser, Com. on Jud. Performance, Ann. Rep. (2005), Public Censure and Bar, pp. 19-20. 26 Inquiry Concerning Judge Shook, Com, on Jud. Performance, Ann. Rep. (1998), Public Admonishment, pp. 24-25. 287 See Cal. Code Jud. Ethics, canon 4D(6)(d).EEE NES BO EBEMNEIDOES Le However, neither the friendships nor the gifts were disclosed in cases involv- ing the donor law firms.?* Significant, in this instance, was the fact that there was no indication that the judge acted favorably toward the donor/friends. Special note on waiver of disqualification where judge has a relation- ship to a lawyer or party. See Handbook section 7.24, 1. [§7.52] Staff Members and Other Judges Staff member or other judge as party or victim. A judge was disciplined for failure to obtain a written waiver and presiding in a driving- under-the-influence case involving the judge’s own clerk.** The judge was disqualified even though the prosecutor was aware of the fact and did not object. In such a situation, an on-the-record disclosure of the facts and a writ- ten waiver were required. Where a court employee's spouse is a party, victim or deferidant in a case before a judge, and the judge can maintain his or her impartiaiity’, disqualifica- tion would ordinarily not be necessary. In such a case, oné eid not expect that a “person aware of the facts” would “reasonably entertain a doubt that the judge would be able to be impartial.” Where the party, victim or defendant is a fellow judge or a spouse of a fellow judge, there would at least be a perception of bias, or a reasonable doubt that any judge on the same court would be able to maintain impartiality. For this reason, courts will undertake efforts to assure the appearance of impartiality: secure the services of an assigned judge to handle the matter, transfer the case to another county or appellate district, or, if the court is large, transfer the matter to another branch location of the court. Dealing with conflicts of interest of staff members. A judge has a duty to “require staff and court personnel under the judge’s direction and control to observe appropriate standards of conduct.” This duty would include assuring that conflicEs:es#88Aestof staff members are not allowed to impact the fair- i roceedings. Although courts may have and enforce ices on the subject, there are no published rules of my view that institutional transparency warrants the = ef rules related to conflicts of interest of staff members ri€S$ and impartiality. in order to 238 Com. on Jud. Performance, Ann. Rep. (1992), Advisory Letter 17, p. 15. 23° Com. on Jud. Performance, Ann. Rep. (1993), Private Admonishment C, pp. 15-16. 2 Code Civ. Proc., § 170.1, subd. (a)(6)(A)Gii). *1 Cal, Code Jud. Ethics, canon 3C(2). * See Handbook section 6.26. The only published rules elating to conduct of staff, the Code of Ethics for the Court Employees of California, contains no provision directly related to conflicts (see Handbook appendix N). 358Ch. 7 DISQUALIFICATION §7.53 When a staff member has a conflict, what should the judge do? The fol- lowing are some hypothetical situations with suggested solutions. The discus- sion is not intended to cover all potential situations or rules which courts should adopt to deal with conflicts. Relationship of staff member to lawyer, witness or party. If a staff member is the spouse of, or living with, a party, witness or attorney appearing before the court, although there would be no basis for disqualifying the judge, the judge should disclose the information and see to it that the staff member is in no position to impair or appear to impair the faimess of the proceedings. Relationship of research attorney to lawyer, witness or party. In the case of a person in the position of judicial research attorney, the judge should see to it that the staff member has no contact with the case. Disclosure in such a situation ig mot mecessary provided the judge has effectively walled off the staff member froma contact with the case, The judge should see to it that there are clear niles for disekisure to the judge by the staff member of such conflicts. An appellate justice whose staff attorney was married to a Deputy Attorney General was: adyised, (at the justice was aot disqualified from hearing cases involving the Attorney General’s office, and presumably the actual Deputy At- torney General, but the justice was also advised that he or she must ensure that the staff attorney was not assigned to work on the spouse’s cases.* m. . 87.83] Public Officials Public official with no personal relationship to the judge. There is no prohibition against a judge presiding in a case, including a criminal case, involving a public official, such as a member of the board of supervisors of the county.%* Recusal would only be required were the judge to conclude that she or he could not be fair and impartial. Fear that the board of supervisors might retaliate with respect to court funding is not a basis for recusal.%* Where the judge has a personal relationship with the public official. Because judges are often involved in their communities, they may have close personal relationships with public officials, including officials who may have been instrumental in the judge’s securing his or her judicial office. Public officials are often sued in their official capacities, or, in the case of elected officials who head public law offices, appear before the courts. Courts would have difficulty functioning if personal relationships with such officials required recusal. There appears to be #0 authority in California requiring disqualification of the tial judge in such circumstances. A judge in such a situation needs to determine whether there are any particular circumstances 243 Cal, Judges Assoc., Judicial Ethics Update (2006) p. 2. 244 Cal, Judges Assoc., Judicial Ethics Update (1987) p. 2 and Judicial Ethics Update (1997) p. 4. 245 Cal, Judges Assoc., Judicial Ethics Update (1990) p. 2.31D CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 that would mandate consideration of disqualification under Code of Civil Procedure section 170.1, subdivision (a)(6). In regard to cases where the official is a party to the action, here are some of the things a judge may want to examine concerning potential recusal. Where the official is sued in an official capacity as_a result of official action. The following are some of the potential circumstances that could require consideration of disqualification even where the official who is a friend of the judge is sued in his or her official capacity for official action: (1) Where the judge would be required to make a determination on the credibility of the official (for example, where the official is a witness and a determination of credibility would be necessary); (2) Where the decision in the case would have a reasonable potential of seriously harming the reputation, integrity or political future of the official; or AX>Where the cases, although citing official action of the official, allege peresfeeeimpropriety or misconduct of the official (for example wrongful temige8n, conflict of interest, misuse of public funds, etc.) Where official action is not at issue, whether sued in official capacity or otherwise. In such a circumstance (for example. ¢ke official who is a friend is charged with a crime, or sued for some conduct, such as sexual harassment), the litigation involves the officiae-g! ally and the only issue is is the nature of the friendship requires disqualification. If the nature of sYoship would require recusal were the person not an official, then the Sy@cused. (See Handbook section 7.32). of Columbia. In the Cheney case, a x ore the Supreme Court sought recusal of justipe, based, personal friendship between the justice and Vice President #23 While the case was pending before the Supreme Coe: duck hunting trip with the Vice President (and traveled: airplane). In denying the motion for recusal, the Justivie 4 “... But while friendship is a ground for recusg?, personal fortune or the personal freedom of the, traditionally nor been a ground for recusal whet: GONG Tat Sue, no matter how important the official action “wis 1S Rib sities or the reputation of the Government officer. : "hata ~ A rule that required Members of this Court to remove themselves from cases in which the official actions of friends were at issue would be ut- terly disabling. Many Justices have reached this Court precissi they were friends of the incumbent President or other seniog 4 and from the earliest days down to moder times Justices have 360Ch. 7 DISQUALIFICATION §7.54 personal relationships with the President and other officers of the Executive. . . "46 Although this decisien indicates that if the maiter relates to “official ac- tion,” the relationship between tue judge and official is immaterial, in response to the motion the justice went on to indigete that the case at issue was “‘a run-of-the-mill legal disptite aheut 4a acatigistrative decision,’ ” and that “{nJothing this Court sayz on those subjects will bave any bearing upon the reputation and integrity of Richard Cheney.”*” It is clear that more than the mere fact of a close personal friendship with the public official is needed to require recusal when a public official is a party. However, the inquiry cannot be limited to whether or not the suit involves “of- ficial action,” and the four issues described earlier are germane to the question of recusal in these circumstances. igelosure even where the official is sued in an official capacity. Where there ane no circumstances requiring recusal where a public official friend is a pasty in his or her official capacity based on official action, it would be ap- propriate for a judge to disclose the existence of a close personal relationship with the official. (See Handbook section 7.72 et seq.) n. [87.54] Other Relationship Issues Judge’s medical provider. A judge’s one-time visit to a doctor, paid for by insurance, did not disqualify him from hearing a case involving the doctor.#* If, however, the doctor was the judge’s regular physician, the relationship would be such that recusal is required. Disclosure of the reason for recusal may be useful, but is not necessary.“ A judge may wish to maintain privacy concerning the relationship and, as long as the judge disqualifies himself or herself, there is no reason to disclose. Judge’s employee. A judge was removed from office for, among other things, presiding at the bail review hearing and ordering the defendant released on his own recognizance in a case in which the defendant was the judge’s gardener and the judge failed to disclose the relationship. Provider of illicit geeds, A farmer judge was disciplined for presiding over the arraignment of a défendest from whom the judge had purchased 246 Cheney v. U.S. Dist. Coust far £%se. 27 Columbia (2004) 541 U.S. 913, 916, memorandum denying motion % reuse by Mr. Justice Scalia. 247 Cheney v. U.S. Dist. Court for Dist. of Columbia, supra, at pp. 918-919 248 Cal. Judges Assoc., Judicial Ethics Updates (1987) p. 2. 249 See Handbook section 7.18. 2° Dean v. Comarission (1995) 11 Cal.4th 294, 316-320. 261Ch. 7 DISQUALIFICATION §7.57 not disqualified when that person appears, but should disclose such endorsement. Appearance of favoritism and contributions to judges. The fact that we have developed practical solutions to the disqualification issues posed by judicial elections does not mean that we should ignore the potential compromise to judicial integrity created by judicial elections. Regardless of whether the contribution is small or large, in my view based on general ethical principles, sucky eeutibutions are an imposition on the integtity of justice. Handbook sectias; 11.68 questions whether the time has come to-énd judicial elections and fia a way of selecting judges that does set pese such compromises. C. [§7.57] Disqualification Issues Posed by Private Life Activities and Experiences Off-the-bench activities and experiences of a judge and family members can raise the potential of disqualification. This section will discuss how involvement in community activities and other personal life experiences rais- ing disqualification issues.” General rules concerning all private life activities. See Handbook sec- tion 8.31 for a discussion of restrictions on private life activities. General rule requiring judges to avoid activities that would cause disqualification. A judge is required to avoid private life activities which would cause a judge to have to recuse: “A judge shall so conduct the judge’s quasi-judicial and extrajudicial agtivities as to minimize the risk of conflict with judicial obligations.” Sesvice as an officer, director, trustee or nonlegal advisor of an organization. Among activities that would cause disqualification include service as an officer, director, trustee or nonlegal advisor of an organization that “would ordinarily come before the judge” or would “be engaged frequently in adversary proceedings in the court of which the judge is a member.”** Other particular private life activities. As pointed out in Handbook Chapter 10 and Appendix L, the Guide to Involvement in Community Activi- ties and Outreach, there are a number of considerations and issues that raise the question of disqualification and, therefore, the need to avoid such activities. 262 Cal, Judges Agsoe., Judicial Ethics Update (2005) p. 1 26 Cher ‘eaijons in the text discuss related issues: Handbook section 7.36 deals with, among other thivigs, Hfe expertences that might relate to the subject matter of a case; Handbook sec- tions 7:43 and 7.46 deat with disqualification issues raised by activities of family members as ‘Wexyous dnd activities. and relationships to particular cases and the justice system. 74 Cal. Code Jad, 3 5 Cal, Code Jad, #8, canon 4C(3)(c). 365Pexsauat ii exgeriences. The Code of Judicial Ethics and Code of Civil Proceed 15.1 essentially require a judge to examine his or her life experies t of the triage to determine whether or not, among other things, “Ti on avvare of the facts might reasonably entertain a doubt that wild@erste to be impartial.” “Ditéte 2s litfle law on the subject of how far this sort of examination must extend. A. judge should always balance such examinations with the word “reasonable” since one can argue that everything that takes place in your life goes into how you view the world and the it. As a result, this self- examination has to be limited by common a matter to rise to the level of consideration of disqualification, and even lisclosure, the matter must have some reasonable relevance to the proceedings to such an extent that the judge concludes either: (1) that the matter is of such magnitude that the judge cannot put aside her or his biases as a result of the nature of the experience; or (2) that a reasonable mind (not the mind of a particular lawyer or party) would conclude that there is an objective doubt that the judge would be able to remain impartial regardless of the judge’s professional efforts to put aside his or her bias. In the case of O'Flaherty v. Belgum, the bias of an arbitrato: but the majority opinion did not discuss the issue. In a disset er, Justice Grignon discussed the issue carefully. The trial court procecaitigs dealt with a petition to vacate the award of the arbitrator, claiming that the arbitra- tor, a lawyer, should have disclosed information regarding the circumstances surrounding his leaving a particular law firm. The moving party speculated that the arbitrator was terminated from the firm and that this was a traumatic experience which would bias the arbitrator “in favor of anyone claiming to have been improperly expelled [from] a law firm,” which was the issue in the instant case.2” Both the trial court and the dissenter on appeal examined the evidence on the bias claim,”° and concluded that the event had occurred more than 10 years before the proceedings, that there was no similarity other than the fact of leaving a law firm, and that no person “would reasonably entertain a doubt whether [the arbitrator] would be able to be impartial” in this matter. *€ Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii). See Handbook section 2.17. © O'Plahep Belgug C20) 115 Cal App 4th 1044, 1084-1085. * Acbitraigrs are wéqulired fo Gsqualify themselves “upon any of the grounds set forth in Code St GW¥il Brocedae secithn 1%" and to make certain disclosures. Cal. Rules of Court, rale 3.80663) and Slee CivFProc., § 1281.9, subd. (a)(1). O'R pherey ¢ Belytn, supe, 115 Cal.App.4th at pp. 1085, 1106. 366Ch. 7 DISQUALIFICATION 87.57 Thus, although life experiences may be important to the question of disqualification and disclosure, the examination of such issues must stay within the bounds of reason. Consider the following hypothetical question. While a judge is presiding in a case of a gang-related homicide, the judge, driving home, legitimately perceives that occupants of afether car are gang members and are gesturing at the judge in a threatening mazper. The judge is able to safely evade the other car and returns to the courthouse, shaken by the events, and reports the matter to law enforcement. What, if anything should the judge do in the gang trial taking place before the judge regarding what had just taken place? (1) Retaining fortitude and impartiality. As I have noted in Handbook section 7.60, a judge must not allow inappropriate and threatening conduct of others to influence the judge’s conduct and decision in a case pending before the judge. For example, were a judge to respond by recusal if a party filed a complaint with the Commission on Judicial Performance, or if a party engages in other provocative conduct during proceedings, the judge’s ability to preside in any case could be manipulated by the parties. The judge, accordingly, must be a person of fortitude and perform the difficult, but necessary, task of maintaining impartiality and remaining uninfluenced by conduct that takes place in the trial or in private life, regardless of how provaestive it may be. (2) Making a recusal decision. In the above hypothetizal, disqualification is unnecessary and inappropriate, unless, of course, the'judge is unable to maintain his or her impartiality, in which event recusal is required. (3) Making a disclosure decision. Disclosure of such an event is, however, necessary. The parties are entitled to know that such an event took place. In the case of a credible threat to a judge’s life during a proceeding, disclosure would have to be balanced against a real, not imagined, need for confidential- ity either for the purpose of law enforcement’s investigation or to maintain security for the judge, staff and participants in the court. Contributiexs to non-profit organizations or public interest law firms appearing in 4 matter before the judge. The Ethics Committee of the California Judges Association has prepared a formal opinion to assist judges in determining their obligations concerning disqualification or disclosure in a sitaation where the judge has made contributions to a non-profit organization or # pablic interest law firm that appears before the court.”” The Committce Jists a gumber of factors to be considered. (1) The nature of the organization. Where the non-profit organization represents a side in litigation before the courts (e.g., a contribution to Legal Aid suggests support of access to justice for the poor, whereas a contribution to a tenant’s advocacy group suggests sympathy for a side in landlord/tenant 270 Cal. Judges Assoc., Formal Ethics Opinion No. 53 (2003) (Handbook Appendix D).slo Ry ak Ae CUINDIUE TD TSE IO RK Pt. 2 i a cases). In $f “stance membership in the question offi "Gapacity to maintain impartiality. (2) Siz ion. When compared with the judge’s contributions J to all causes, the size of the judge’s centribution can be a factor (when examined in relation to the judge’s other charitable contributions, the judge’s financial worth, and the sorts of contributions made by others). (3) Circumstances of the contribution, Phe committee felt that it might make a difference whether the contribution was made at a fund raising event, or was unsolicited and voluntary. It is not entirely clear to me why this should matter. (4) Judge’s current assignment. A judge who sits in a particular court directly related to issues as to which the organization has an interest would be in a different position from a judge who does not ordinarily hear such cases. (5) Whether a proposed donation will require frequent disclosures or disqualification. This needs to be examined since it is a judge’s duty to minimize activities which would cause disqualification and disclosure problems.””" (6) Pertinent community standards. (7) Umbrella organizations. If a judge contributes to an umbrella organization, such as United Way, the fact that a United Way donce is before the court would require no need to disqualify or disclose. The judge would ordinarily have 29 direct control over disbursement of funds to the organization. ff the umbrella organization is a party, disclosure would be required, urless the contribution was such that disqualification would be in order. (8) Conclusion regarding disclosure. The committee concluded that, even if not disqualified, “the judge should disclose all non-minimal contributions made directly by the judge or the judge’s spouse or partner using community funds to any public service law firm or non-profit organization when that organization or firm appears before the judge.”?” D. [§7.58] Expressing Opinions Similar to the issue discussed in the previous section, a judge’s expres- sion ef gpazions outside of the context of judicial decision may raise disclosure and fication issues. Eitiitts'on disqualification. A judge is not disqualified 4 circumstances: = te following 27! Cal Code Jud. Ethics, canon 4D(4). *72 Cal. Judges Assoc., Formal Ethics Opinion No. 53 (2003) pp. 2-4 (Handbook Appendix D). 368Ch. 7 DISQUALIFICATION §7.59 “(a) Is or is not a xaertiber 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 issuc presented in the proceedings, except as provided in paragraph (2) of subdivision (a) [related to disqualification of a judge who served as a lawyer in the proceedings} of, or subdivision (b) or (c) [related to appel- late proceeding] of, 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.” Thus, absent some other factor, expression of opinions on matters that come befsrs the courts and membership in certain groups do not raise disqualificwiies questions. Exampie of section 170.2 subdivision (b) of the Code of Civil Procedure. A judge is called upon during a proceeding to make a decision on the merits of a claim advanced by a party or the credibility of a party during proceedings. The fact that a judge decides an issue adversely to a party, even finding that a party lied in the course of testimony on a motion or bifurcated proceeding, does not disqualify the judge from continuing to preside in the case. Obviously, judges make decisions during the course of a proceeding, and unless the judge in the course of making those decisions demonstrates a loss of the ability to remain fair and impartial,” disqualification is not required. Drafting or advocating concerning laws. Although there can be an argument that the use of the term “public official” is not intended to encompass a judge, subdivision (c) of section 170.2 above appears to allow a judge (i.e., a “public official”) to participate in the drafting of or advocacy concerning laws that the judge may later have to interpret. Judges have been involved on many occasions in such activities although, as noted in the concluding language of subdivision (c), such involvement has the potential of requiring disqualification. E. [§7.59] Disqualification as a Result of Personal Knowledge or Ex Parte Contacts”’* A judge was disciplined for failing to disclose his xelationship with a member of the legal team working for one of the parties in a case, and for fail- 273 Code Civ. Proc., § 170.2. 24 See Inquiry Concerning Judge Letteau, Com. on Jud. Performance, Ann. Rep. (2004), Public Admonishment, pp. 19-20. 275 See Handbook section 5.00, et seq. regarding ex parte communications.37.60 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 ing to disclose that he had been contacted by that individual before the case was assigned to the judge.” There was no evidence that the discussion included the merits or substance of the case. Where a judge learned of facts concerning a case from the court’s computer system which may be useful to one side or the other in an ongoing trial, the judge would be obligated to disclose the information to the parties in the trial.?” A judge who received an unsolicited letter from an out-of-state judge seeking leniency for a criminal defendant who was to be sentenced by the judge was also obligated to disclose the ex parte communication, but need not disqualify.””* F. [§7.60] Attacks on Judge by Participants in Pending Proceeding Occasionally, judges are faced with having to preside over vitriolic litigation. In such litigation the parties or lawyers may turn on the judge. For example: making complaints to the Commission on Judicial Performance in mid-proceedings concerning the judge’s conduct; filing a lawsuit against the judge; making threatening telephone calls; making negative comments to a judicial rating committee concerning the judge’s lack of qualifications for elevati lection; making public attacks on the judge; filing a statement sof ise fg agtual prejudice during proceedings that contain a false E ‘the judge’s integrity; organizing a campaign to recall i=pesigeedings; and even engaging in repeated contemptuous poured. Such conduct would test the forbearance of and ress to the most professional of judges. ad litigants the desire to win at any cost somehow lous attacks on the judge. Such attacks are often either intimidate the judge or to secure his or her 3 'OF himpartiality, attacks do not require recusal. In none of the sorts of conduct noted above, however, is the judge required to recuse, nor is recusal desirable in the interest of justice unless the judge is unable to maintain professional distance and objectivity in spite of the attacks and, as a result, suffers a loss of impartiality. Absent this, no matter how public or caustic the attack, no basis for disqualification exists in such a situation.” The standard for disqualification set forth in Code of Civil Procedure sec- tion 170.1, subdivision (a)(6)(A)(ii), that “[a] person aware of the facts might *7° Com. on Jud. Performance, Ann. Rep. (1994), Advisory Letter 27, p. 20. ?77 Cal. Judges Assoc., Judicial Ethics Update (1! 278 Cal. Judges Assoc., Formal Ethics Opinion N (Handbook Appendix D). {6-7 (Handbook Appendix D). Ssdvising that it is not a ground against the judge with the 279 Cal. Judges Assoc., Formal Ethics Opinion N See also Cal. Judges Assoc., Judicial Ethics Upd: for disqualification that a lawyer previously fiJae 25" 370Ch. 7 DISQUALIFICATION §7.60 reasonably entertain a doubt that the judge would be able to be impartial,” has been interpreted in United Farm Workers of America v. Superior Court, to be an objective standard. ““TA] judge faced with a potential ground for disqualification ought to consider how his participation in a given case looks to the average person on the street.’ [Citations.]”” Certainly it is possible that a person unaware of the circumstances concerning such attacks might conclude that the judge ought to be disqualified when the judge is the object of a lawsuit or complaint to the Commission on Judicial Performance, or is the target of a recall campaign by an unhappy litigant. But the Code of Civil Procedure demands more by requiring that the test is that of a knowledgeable and objective person and, further, that the doubt concerning impartiality must be a reasonable one. When a litigant at- tacks a judge and the court, more is at stake than the judge’s reputation: the administration of justice is in jeopardy when a judge is intimidated into recusal. Example - engaging in contemptuous acts. It appears settled that “where acts of contempt are palpably aggravated by a personal attack upon the judge, in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed.’”*' “To permit such an attack to cause a new trial before a new judge would encourage unruly courtroom behavior and attacks on the trial judge and would greatly disrupt judicial administration.” See further discussion in Handbook section 4.33. Example - filing a lawsuit. In First Western Development Corp. v. Superior Court,” a litigant attempted to obtain the disqualification of the ap- pellate panel hearing his case by filing a lawsuit naming all of the members of the panel as defendants, along with other judges and court officers who alleg- edly engaged in a conspiracy to discriminate against defendants. The appellate court held that: “.., [t]he lawsuit is an obvious ploy to cause us to recuse ourselves. The courts of this state cannot permit a litigant to ‘shop’ for a judge through the device of filing a lawsuit against those judges who enter rul- ings adverse to the litigant. Such procedure would make it possible for a litigant who obtains an unfavorable decision from a trial court or from an Commission on Judicial Performance, and advising that a judge is not disqualified where a party threatens to complain to the commission, unless the judge doubts his or her ability to be fair. 280 United Farm Workers of America v. Superior Court (1985) 170 Cal. App.3d 97, 104. 281 Cooke v. United States (1925) 267 US. 517, 539. 282 United States ex rel. Hall v. Washington (C.D. Ill. 1996) 916 F.Supp. 1411, 1436-1437. 283 First Western Development Corp. v. Superior Court (1989) 212 Cal.App.3d 860.§7.60 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 appellate court to cause that court to become disqualified or to recuse itself merely by filing a lawsuit naming the judicial officers as defendants. Such an obvious attempt to manipulate the legal system will not be condoned.”*** Example - complaint to Commission on Judicial Performance. A judge is not disqualified in a matter where an attorney has complained to the Commission on Judicial Performance about the judge,” unless the judge is actually biased against the lawyer or the party as a result of the actions. When a complaint of judicial misconduct to the Commission on Judicial Performance is made during the course of a proceeding, the commission will normally delay its consideration of the complaint until after the proceeding is concluded. CJP complaint during pending case. If a judge has learned of complaints outside the presence of all the parties (e.g., where a lawyer or a party has complained to the Commission on Judicial Performance and sends a copy of the complaint to the judge without sending a copy to the other side in the case, or the judge is served with a lawsuit and the judge is not certain all the parties are aware), the knowledge would have come to the judge ex parte, and the judge should, at the earliest possible time, disclose the communication to all parties in open court in the pending proceeding. Where the same party or lawyer sued the judge in the past. Where the judge knows that a lawyer or party sued the judge or filed a complaint against the judge in the past, is the judge required to disclose the fact in the pending case, or in another case where that same party or attorney appears? Canon 3E(2) requires disclosure of information that the “parties or their lawyers might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification.” Thus, no disclosure is required under canon 3E(2) since there is no basis for disqualification based on the filing of the suit or the complaint. Maintaining calm in the storm. You can remain fair and impartial, calm and dispassionate, in the face of personal attacks or disruptive tactics. Some ideas are proposed in Handbook sections 2.41 through 2.50. Luckily this sort of thing is rare because almost all of the lawyers, parties, witnesses and jurors that a judge will run across in an entire career behave appropriately, cooperatively and in accordance with the rules that guide our system of justice. 284 Jd, at p. 867. 285 Cal. Judges Assoc., Judicial Ethics Update (2001) p. 4. 372Ch.7 DISQUALIFICATION §7.62 G. [87.61] Disqualified Judge Serving as a Settlement Judge A disqualified judge is still permitted to “[c]onduct settlement conferences.”** H. [§7.62] Serving as Trial Judge After Conducting a Settlement Conference Settlement conferences with intensive judicial participation have become a critical element of civil litigation in California. Is a judge disqualified from serving as the trial judge after serving as a settlement judge? Although there is concern on this issue, a judge is not disqualified from participating in a case after conducting a settlement conference, unless the judge has learned something in the conference that has prejudiced him or her in the case or the nature of the judge’s expression of a view on the merits of the case impairs his or her ability to conduct the trial fairly and impartially.”” As already noted, in Handbook section 7.58, the expression of “a view on a legal or factual issue presented in the proceeding” in “any capacity” clearly allows a trial judge to engage in settlement discussions without being disqualified.*° In discussing settlement with counsel in chambers on the day of trial, a judge expressed a view that liability was clear and that the case ought to be settled?” An affidavit of actual prejudice was denied when the trial judge indicated that he had no bias against either party, and that it was the judge’s practice to explore settlement in every case that came to him for trial. The Court of Appeal affirmed stating that “[e]xpressions of opinion of this nature by a judge, in whai he conceives to be a discharge of his official duties, do not evidence a bias or prejudice which would prevent him from being entirely fair and impartial in the trial.” Consent of parties is necessary for separate meetings with parties and counsel. It should be noted here that although the Code of Judicial Ethics permits a judge to meet separately with parties and counsel to mediate or settle acase, such meetings may only take place “with the consent of the parties.”*" Accordingly, a judge should document the settlement either by a written agreement for such private discussions, or by placing such an agreement on the record. son Civ. Proc., § 170.4, subd. (a)(6). See Adams v. Commission (1995) 10 Cal.4th 866, 287 See Handbook section 5.20 on ex parte communications in settlement conferences. 238 Code Civ. Proc., § 170.2, subd, (b). See Roth v. Parker (1997) 57 Cal.App.4th 542, 549. 28° Garcia v. Estate of Norton (1986) 183 Cal.App.3¢ 413, 422 20 Id. at p. 423. 2°' Cal. Code Jud. Ethics, canon 3B(7)(c). See Handbook section 5.19 on this subject. 272$7.62 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt.2 Need to assure fairness and impartiality in conduct of settlement conferences. While it is not improper for a judge to engage in a settlement conference where the judge will also try the cause, judges should look at the questions about the capacity of a judge to disregard inadmissible information learned in a settlement conference.” In any event, the practice of conducting settlement conferences where you will also try the case contains a potential of the appearance of a loss of impartiality. The rules of ethics allow it, but I believe the integrity of the decision making process, the central principle of judicial ethics, i net well served by these rules. You may want to look at the following altersatives aimed at minimizing the potential of bias: (1) Consider adopting a system in your court of trading settlement confer- ences so thas yo de Mot conduct a conference where you are to be the fact finder in the case; (2) Where you will be the trial judge, only conduct a settlement confer- ence with the consent of the parties and counsel; (3) If you do conduct a settlement conference in a case you should: ¢ explain to the parties and counsel how the settlement conference will be conducted and what will take place, avoid expressions of opinions on the merits or worth of the case, avoid expressions of opinion on legal issues you may have to rule upon, not pressure parties to settle or create the appearance of undue pressure to settle, © avoid any conduct that raises a doubt about your ability to remain impartial, and ¢ do not conduct separate meetings with the parties or counsel without the agreement of all parties and counsel; &4} Recognize that you, as a judge, hold a position of power and author- ity, and that the parties may feel compelled to bend to what they think is the will of a judge who might end up having to try the case. Your role as a judge is to assure that proceedings not only are fair, but appear to be so. 22 See Wistrich, Guthrie & Rachlinski, Can Judges Ignore Inadmissible Information? The Dif- Siculty of Deliberately Disregarding (2005) 153 U.Pa. L. Rev. 1251. A portion of the empirical study behind the article involved “whether judges who encounter inadmissible information dur- ing a pretrial settlement conference are able to disregard it at trial.” Id. at p. 1286. 374Ch.7 DISQUALIFICATION 87.64 I. [$7.63] Serving on Reviewing Court “A judge before whom a proceeding was tried or heard” is “disqualified from participating in any appellate review of that proceeding.”2% In Housing Authority of Monterey County v. Jones,? a judge heard certain pretrial motions in a limited-jurisdiction unlawful detainer proceeding. Following trial of the matter before another judge, the judge who heard the pretrial motions sat on the superior court appellate division panel that heard the appeal, and she joined in the unanimous opinion affirming the judgment. In its review of the appellate department's finding that the judge was not disqualified, the Court of Appeal reached two important conclusions regarding Code of Civil Procedure section 170.1, subdivision (b): (1) Disqualification under section 170.1, subdivision (b) - meaning of the word “proceeding.” Section 170.1, subdivision (b) “does not require disqualification of a judge from a superior court appellate division panel where that same judge has heard a contested pretrial motion in a limited-jurisdiction case and the appeal is from the subsequent judgment” and not from the motion itself. The court found that section 170.1, subdivision (b) is clear: this section disqualifies the judge from the “proceeding” which the judge actually “tried or heard.” Since the ruling on the motion was not on appeal, the judge who heard and decided the motion was not disqualified under section 170.1, subdivision (b). This conclusion was based on the definition of “proceeding” in section 170.5, subdivision (f): a “proceeding” includes the “action, case, cause, mo- tion, or special proceeding.”*® It seems from the language of the decision that it might have been different had the ruling on the motion been in some way directly at issue in the appellate review on which the judge participated. (2) Disqualification under section 170.1, subdiv {a)(6)(A (iii). Although not disqualified under section 170.1, subdivisi ), the Court of Appeal found that the judge was disqualified under section 170.1, subdivision (a)(6)(A)Gii): “where a judge decided a contested pretrial matter that involved an issue related to, though not the same as, the one on appeal, it would be dif- ficult, if not impossible, to avoid the appearance of impropriety if that judge were to participate in the appellate review.” J. [§7.64] Membership in Certain Discriminatory Organizations Although canon 2C bars membership in discriminatory organizations, the second paragraph of that canon has an exemption: “This Canon does not apply 2% Code Civ. Pr .. § 170.1, subd. (b). 2 Housing Authority of Monterey County v. Jones (2005) 130 Cal.App.4th 1029. 2° Housing Authority of Monterey County v. Jones, supra, 130 Cal.App.4th at pp. 1040-1041. Although this holding seems to be narrowed to the appellate division of the superior court, the same interpretation may apply to any appellate circumstance. 2° Housing Authority of Monterey County v. Jones, supra, 130 Cal.AppAth at pp. 1041-1042$7.65 CALIFORNIA JUDICIAL CONDUCT HANDBOOK Pt. 2 to membership in a religious organization or an official military organization of the United States. So long as membership does not violate Canon 4A, this Canon does not bar membership in a nonprofit youth organization.” On June 18, 2003, the Supreme Court adopted a new commentary to canon 3E which impacts the obligation to disclose discriminatory organization memberships, even though judges are not barred from being members of such organizations by canon 2C. Sce full discussion of this new commentary in Handbook sections 10.23 to 10.25. K. [$7.65] Small Community Relationships Within a small community, judges will probably: of relationships with all the lawyers and many of the ci One might argue that where everyone in the community knows“ef #is vela@onships, and everybody knows everybody, the rules concerning disqualification and disclosure may be different in such a context than in a major metropolitan area. ioG have a variety In a dissenting opinion in Fletcher v. Commission, Justice Kennard questioned the appropriateness of the sanction of removal of a judge from of- fice, indicating that the record revealed that the judge “discharged his duties diligently and in good faith,” but sometimes “had difficulty in separating his judicial role from his role in the community.” “Especially in small communities like Judge Fletcher’s town of Bass Lake in Madera County, the lawyers who become judges are often active and prominent figures deeply involved in the life of the community. Becoming a judge requires the lawyer to disengage from those connec- tions and assume a more detached rai Most of the instances of misconduct by Judge Fletcher have arisay fem his failure at times to maintain the detachment inhering in the offiee’ef judge... .”27 The majority of the court recognized the fact of a small community “arguably relates to his [Judge Fletcher’s] apparent inability to refrain from ex parte contacts,” but nonetheless found that this did not excuse the misconduct. It is clear that both the majority and Justice Kennard recognize that function- ing in a small community does not excuse misconduct, and that the Code of Judicial Ethics applies uniformly throughout California. Accordingly, the disqualification and disclosure rules, as is the case with all the rules of judicial ethics, make no distinction between the big city versus the small town: “By their terms, the canons impose uniform statewide standards. Whenever an assigned case involves a party the judge ‘knows,’ the judge °°? Fletcher v. Commission (1998) 19 Cal.4th 865, 922-923. °8 Fletcher v. Commission, supra, 19 Cal.4th at p. 918, fn. 24, 376Ch.7 DISQUALIFICATION §7.66 must be particularly vigilant to ensure the appearance and reality of independence and impartiality. The situation may arise more frequently in a small town than a major metropolitan area, but the judge’s ethical du- ties are the same irrespective of population statistics... .”2 L. [87.66] Examples of Decisions Involving Disqualification The following are some examples of decisions that provide some insight into the sorts of relationships and circumstances that impact disqualification. Judge’s undisclosed relationship with a party. A probationer wanted to terminate her probation in order to join the Air Force National Guard. She called the judge and he arranged to have the matter placed on his calendar. During the hearing, in the presence of the prosecutor, the judge did not disclose that he knew her or that she had contacted him personally regarding the mat- ter, and gave the impression he had no knowledge as to why she was in court. The judge was disciplined.* A judge was disciplined for failing to recuse in numerous collection mat- ters involving financial institutions that had pending lawsuits against the judge for unpaid debt which were not contested.” Past relationship to party. The judge trying a case where Stanford University was a party apparently did not disclose that 17 years earlier he served for seven years as president of the law school’s Law Society and three years as president of the Board of Visitors. The court found that a reasonable person aware of these facts would not conclude that the judge would be biased in light of the remoteness of the connection, the fact that the connection had no relationship to the nature of the dispute with Stanford University, and in light of the reputation of the particular judge for fairness and impartiality.°? Had canon 3E(2) been in effect in 1985, disclosure would have been required. Race biased language of judge. The judge used the term “good boy” during a plea and sentencing of an adult male of African American descent in case X. Two months later in case Z, another defendant of African American descent, sought recusal of the judge for the “good boy” comment in case X. The Court of Appeal found that no reasonable person aware of the circumstances would entertain a doubt as to the judge’s impartiality in the *° Inquiry Concerning Judge Wasilenko, Com. on Jud. Performance, Ann. Rep. (2005), Public Censure and Bar, pp. 18-19. The material noted in the text is in the full decision of the commis- sion issued on March 2, 2005, p. 18. °° Inquiry Concerning Judge Hyde, Com. on Jud. Performance, Ann. Rep. (2003), Removal from Office, pp. 20-22, The material noted in the text is in the full decision of the commission issued on September 23, 2003, pp. 10-12. °°! Com. on Jud. Performance, Ann. Rep. (2004), Private Admonishment 7, p. 22. 302 Stanford University v. Superior Court (1985) 173 Cal.App.3d 403, 408-409.