CALIFORNIA JUDGES BENCHGUIDES

Benchguide 2

DISQUALIFICATION OF JUDGE
[REVISED 2010]

b. [2.7] Judges Duty To Be Impartial

Judges have a duty to make their decisions free from any bias or
prejudice. Cal Rules of Ct, Standards of J Admin 10.20; Cal Rules of Ct,
Code of Judicial Ethics, Canon 3B(5). Because of this obligation, judges
must disqualify themselves in proceedings in which their disqualification
is required by law (see CCP 170.1(a); discussion in 2.112.19) or in
which their impartiality might reasonably be questioned (CCP
170.1(a)(6)(A)(iii); see Commentary to Cal Rules of Ct, Code of Judicial
Ethics, Canon 3E; discussion in 2.152.17).
JUDICIAL TIP: The headline test is a good exercise for the
judge to apply when deciding whether to initiate recusal,
especially when dealing with the appearance of impropriety. The
judge should consider the headline a newspaper might use to
announce that the judge was remaining on the case in spite of, for
example, the judges relationship to or interest in a party, or other
possible basis for disqualification.
c. [2.8] Judges Duty To Disclose Information Potentially
Relevant to Disqualification
A judge must disclose on the record information the judge believes
the parties or their attorneys might consider relevant to the question of

2.9

California Judges Benchguide

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disqualification, even if the judge believes there is no actual basis for

disqualification. Cal Rules of Ct, Code of Judicial Ethics, Canon 3E(2);
Cal Rules of Ct 2.817 [temporary judge]. The parties should have an
opportunity to weigh this information when considering whether to
challenge the judge. Many judges invite the parties to comment on the
disclosed information. See Rothman, Handbook 7.02. Even if the parties
decide to waive disqualification, disclosure helps to ensure that they are
fully informed when they do so. Disclosure might be appropriate, for
example, if:
The judge and an attorney in the proceeding are active members of
the same service organization or regularly play golf together. See
Rothman, Handbook 7.51.
An attorney contributed to the judges election campaign. See
Rothman, Handbook 7.56.
The judge was once treated by the physician who is a party to the
proceedings. See Rothman, Handbook 7.54.
The judges spouse and one of the parties have the same occupation and the subject matter of the action arises from that
occupation. See Geldermann, Inc. v Bruner (1991) 229 CA3d 662,
280 CR 264 (judges wife was realtor; action involved disputed
real estate commission).
In order to make an informed decision about recusal, judges must
review their financial interests and family relationships as they may relate
to the cases before them. CCP 170.1(a)(3)(C).
Because in some instances membership in certain organizations may
have the potential to give an appearance of partiality even though
membership itself may not be barred by the judicial canons, a judge
should consider disqualification under the general standards of Canon
3E(1). If the judge believes no basis for disqualification exists, he or she
should nevertheless disclose the membership if the parties or their lawyers
might consider the information relevant to the question of disqualification.
Commentary to Cal Rules of Ct, Code of Judicial Ethics, Canon 3E.
d. [2.9] Disciplinary Action for Failure To Recuse
A judges failure to initiate recusal when grounds for disqualification
clearly exist may be grounds for disciplinary action. See In re Youngblood
(1983) 33 C3d 788, 191 CR 171 (judge engaged in litigation against corporation that was party in case assigned to judge); Rothman, Handbook
7.36. However, a judges failure to initiate recusal, even when recusal is
mandatory, is not a criminal violation of Govt C 1222 (willful failure to
perform duty required by law of public official) or a criminal offense of