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A. Judicial Duties in General

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All of the judicial duties prescribed by law* shall take precedence over all other
activities of every judge. In the performance of these duties, the following
standards apply.
B. Adjudicative Responsibilities

(1) A judge shall hear and decide all matters assigned to the judge except those
in which he or she is disqualified.
ADVISORY COMMITTEE COMMENTARY: Canon 3B(1)
Canon 3B(1) is based upon the affirmative obligation contained in Code of
Civil Procedure section 170.
(2) A judge shall be faithful to the law* regardless of partisan interests, public
clamor, or fear of criticism, and shall maintain professional competence in the
law.*

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ADVISORY COMMITTEE COMMENTARY: Canon 3B(2)

Competence in the performance of judicial duties requires the legal
knowledge,* skill, thoroughness, and preparation reasonably necessary to
perform a judges responsibilities of judicial office. Canon 1 provides that an
incorrect legal ruling is not itself a violation of this code.
(3) A judge shall require* order and decorum in proceedings before the judge.

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A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL

OFFICE IMPARTIALLY,* COMPETENTLY, AND
DILIGENTLY

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CANON 3

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(4) A judge shall be patient, dignified, and courteous to litigants, jurors,

witnesses, lawyers, and others with whom the judge deals in an official
capacity, and shall require* similar conduct of lawyers and of all staff and
court personnel under the judges direction and control.
(5) A judge shall perform judicial duties without bias or prejudice. A judge
shall not, in the performance of judicial duties, engage in speech, gestures, or
other conduct that would reasonably be perceived as (a) bias or prejudice,
including but not limited to bias or prejudice based upon race, sex, gender,
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(4) A judge shall cooperate with judicial and lawyer disciplinary agencies.

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ADVISORY COMMITTEE COMMENTARY: Canons 3D(3) and 3D(4)

See Government Code section 68725, which requires judges to cooperate
with and give reasonable assistance and information to the Commission on
Judicial Performance, and rule 104 of the Rules of the Commission on Judicial
Performance, which requires a respondent judge to cooperate with the
commission in all proceedings in accordance with section 68725.

(5) A judge shall not retaliate, directly or indirectly, against a person known*
or suspected to have assisted or cooperated with an investigation of a judge or
a lawyer.
E. Disqualification and Disclosure

(1) A judge shall disqualify himself or herself in any proceeding in which

disqualification is required by law.*
(2) In all trial court proceedings, a judge shall disclose on the record as
follows:
(a) Information relevant to disqualification

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A judge shall disclose information that is reasonably relevant to the

question of disqualification under Code of Civil Procedure section 170.1,
even if the judge believes there is no actual basis for disqualification.
(b) Campaign contributions in trial court elections

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judicial officer,* he or she shall promptly report such information in writing to

both the presiding judge of the court in which the subordinate judicial officer*
sits and the Commission on Judicial Performance.

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(i) Information required to be disclosed

In any matter before a judge who is or was a candidate for judicial
office* in a trial court election, the judge shall disclose any
contribution or loan of $100 or more from a party, individual lawyer, or
law office or firm in that matter as required by this canon, even if the
amount of the contribution or loan would not require disqualification.
Such disclosure shall consist of the name of the contributor or lender,
the amount of each contribution or loan, the cumulative amount of the
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(ii) Manner of disclosure

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The judge shall ensure that the required information is conveyed on the
record to the parties and lawyers appearing in the matter before the
judge. The judge has discretion to select the manner of disclosure, but
the manner used shall avoid the appearance that the judge is soliciting
campaign contributions.
(iii) Timing of disclosure

Disclosure shall be made at the earliest reasonable opportunity after

receiving each contribution or loan. The duty commences no later than
one week after receipt of the first contribution or loan, and continues
for a period of two years after the candidate takes the oath of office, or
two years from the date of the contribution or loan, whichever event is
later.

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ADVISORY COMMITTEE COMMENTARY: Canon 3E(2)(b)

Code of Civil Procedure section 170.1, subdivision (a)(9)(C) requires a
judge to disclose any contribution from a party or lawyer in a matter that is
before the court that is required to be reported under subdivision (f) of Section
84211 of the Government Code, even if the amount would not require
disqualification under this paragraph. This statute further provides that the
manner of disclosure shall be the same as that provided in Canon 3E of the Code
of Judicial Ethics. Canon 3E(2)(b) sets forth the information the judge must
disclose, the manner for making such disclosure, and the timing thereof.
Contribution includes monetary and in-kind contributions. See Cal.
Code Regs., tit. 2, 18215, subd. (b)(3). See generally Government Code section
84211, subdivision (f).
Disclosure of campaign contributions is intended to provide parties and
lawyers appearing before a judge during and after a judicial campaign with easy
access to information about campaign contributions that may not require
disqualification but could be relevant to the question of disqualification of the
judge. The judge is responsible for ensuring that the disclosure is conveyed to the
parties and lawyers appearing in the matter. The canon provides that the judge
has discretion to select the manner of making the disclosure. The appropriate
manner of disclosure will depend on whether all of the parties and lawyers are

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contributors contributions or lenders loans, and the date of each

contribution or loan. The judge shall make reasonable efforts to obtain
current information regarding contributions or loans received by his or
her campaign and shall disclose the required information on the record.

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present in court, whether it is more efficient or practicable given the courts

calendar to make a written disclosure, and other relevant circumstances that may
affect the ability of the parties and lawyers to access the required information.
The following alternatives for disclosure are non-exclusive. If all parties are
present in court, the judge may conclude that the most effective and efficient
manner of providing disclosure is to state orally the required information on the
record in open court. In the alternative, again if all parties are present in court, a
judge may determine that it is more appropriate to state orally on the record in
open court that parties and lawyers may obtain the required information at an
easily accessible location in the courthouse, and provide an opportunity for the
parties and lawyers to review the available information. Another alternative,
particularly if all or some parties are not present in court, is that the judge may
disclose the campaign contribution in a written minute order or in the official
court minutes and notify the parties and the lawyers of the written disclosure. See
California Supreme Court Committee on Judicial Ethics Opinions, CJEO Formal
Opinion No. 2013-002, pp. 7-8. If a party appearing in a matter before the judge
is represented by a lawyer, it is sufficient to make the disclosure to the lawyer.
In addition to the disclosure obligations set forth in Canon 3E(2)(b), a
judge must, pursuant to Canon 3E(2)(a), disclose on the record any other
information that may be relevant to the question of disqualification. As examples,
such an obligation may arise as a result of contributions or loans of which the
judge is aware made by a party, lawyer, or law office or firm appearing before the
judge to a third party in support of the judge or in opposition to the judges
opponent; a party, lawyer, or law office or firms relationship to the judge or role
in the campaign; or the aggregate contributions or loans from lawyers in one law
office or firm.
Canon 3E(2)(b) does not eliminate the obligation of the judge to recuse
himself or herself where the nature of the contribution or loan, the extent of the
contributors or lenders involvement in the judicial campaign, the relationship of
the contributor or lender, or other circumstance requires recusal under Code of
Civil Procedure section 170.1, and particularly section 170.1, subdivision
(a)(6)(A).

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(3) A judge shall disqualify himself or herself in accordance with the

following:
(a) Statements that commit the judge to a particular result
A judge is disqualified if the judge, while a judge or candidate for judicial
office,* made a statement, other than in a court proceeding, judicial
decision, or opinion, that a person aware of the facts might reasonably
believe commits the judge to reach a particular result or rule in a particular
way in a proceeding.
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Ownership of a corporate bond issued by a party to a proceeding and

having a fair market value exceeding $1,500 is disqualifying. Ownership
of a government bond issued by a party to a proceeding is disqualifying
only if the outcome of the proceeding could substantially affect the value of
the judges bond. Ownership in a mutual or common investment fund that
holds bonds is not a disqualifying financial interest.

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ADVISORY COMMITTEE COMMENTARY: Canon 3E(3)(b)

The distinction between corporate and government bonds is consistent with
the Political Reform Act (see Gov. Code, 82034), which requires disclosure of
corporate bonds, but not government bonds. Canon 3E(3) is intended to assist
judges in complying with Code of Civil Procedure section 170.1, subdivision
(a)(3) and Canon 3E(5)(d).
(4) An appellate justice shall disqualify himself or herself in any proceeding if
for any reason:
(a) the justice believes his or her recusal would further the interests of
justice; or
(b) the justice substantially doubts his or her capacity to be impartial;* or
(c) the circumstances are such that a reasonable person aware of the facts
would doubt the justices ability to be impartial.*

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(5) Disqualification of an appellate justice is also required in the following

instances:

(a) The appellate justice has appeared or otherwise served as a lawyer in the
pending* proceeding, or has appeared or served as a lawyer in any other
proceeding involving any of the same parties if that other proceeding
related to the same contested issues of fact and law as the present
proceeding, or has given advice to any party in the present proceeding upon
any issue involved in the proceeding.

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(b) Bond ownership

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ADVISORY COMMITTEE COMMENTARY: Canon 3E(5)(a)

Canon 3E(5)(a) is consistent with Code of Civil Procedure section 170.1,
subdivision (a)(2), which addresses disqualification of trial court judges based on
prior representation of a party in the proceeding.

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(c) The appellate justice represented a public officer or entity and

personally advised or in any way represented that officer or entity
concerning the factual or legal issues in the present proceeding in which the
public officer or entity now appears.

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(d) The appellate justice, his or her spouse or registered domestic partner,*
or a minor child residing in the household, has a financial interest or is
either 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. A
financial interest is defined 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 $1,500. Ownership in a mutual or common
investment fund that holds securities does not itself constitute a financial
interest; holding office in an educational, religious, charitable, service,* or
civic organization does not confer a financial interest in the organizations
securities; and a proprietary interest of a policyholder in a mutual insurance
company or mutual savings association or similar interest is not a financial
interest unless the outcome of the proceeding could substantially affect the
value of the interest. A justice shall make reasonable efforts to keep
informed about his or her personal and fiduciary* interests and those of his
or her spouse or registered domestic partner* and of minor children living
in the household.

(e)(i) The justice or his or her spouse or registered domestic partner,* or a

person within the third degree of relationship* to either of them, or the
spouse or registered domestic partner* thereof, is a party or an officer,
director, or trustee of a party to the proceeding, or

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(b) Within the last two years, (i) a party to the proceeding, or an officer,
director or trustee thereof, either was a client of the justice when the justice
was engaged in the private practice of law or was a client of a lawyer with
whom the justice was associated in the private practice of law; or (ii) a
lawyer in the proceeding was associated with the justice in the private
practice of law.

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(ii) a lawyer or spouse or registered domestic partner* of a lawyer in the

proceeding is the spouse, registered domestic partner,* former spouse,
former registered domestic partner,* child, sibling, or parent of the
justice or of the justices spouse or registered domestic partner,* or such
a person is associated in the private practice of law with a lawyer in the
proceeding.

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(ii)

has personal knowledge* of disputed evidentiary facts

concerning the proceeding, or

(iii)

has a personal bias or prejudice concerning a party or a partys

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served as the judge before whom the proceeding was tried or

heard in the lower court,

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(g) A temporary or permanent physical impairment renders the justice

unable properly to perceive the evidence or conduct the proceedings.
(h) The justice has a current arrangement concerning prospective
employment or other compensated service as a dispute resolution neutral or
is participating in, or, within the last two years has participated in,
discussions 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;

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(ii) The matter before the justice includes issues relating to the
enforcement of either an agreement to submit a dispute to an
alternative dispute resolution process or an award or other final
decision by a dispute resolution neutral;

(iii) The justice 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 justice has the arrangement,
has previously been employed or served, or is discussing or has
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(i)

(iv) The justice will select a dispute resolution neutral or entity to

conduct an alternative dispute resolution process in the matter before
the justice, and among those available for selection is an individual or
entity with whom the justice has the arrangement, with whom the
justice has previously been employed or served, or with whom the
justice is discussing or has discussed the employment or service.

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(f) The justice

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For purposes of Canon 3E(5)(h), participating in discussions or has

participated in discussions means that the justice (i) solicited or otherwise
indicated an interest in accepting or negotiating possible employment or
service as an alternative dispute resolution neutral, or (ii) 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 information about that possible
employment or service. If a justices 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.
For purposes of Canon 3E(5)(h), party includes the parent, subsidiary, or
other legal affiliate of any entity that is a party and is involved in the
transaction, contract, or facts that gave rise to the issues subject to the
proceeding.
For purposes of Canon 3E(5)(h), dispute resolution neutral means an
arbitrator, a mediator, a temporary judge* appointed under article VI,
section 21 of the California Constitution, a referee appointed under Code of
Civil Procedure section 638 or 639, a special master, a neutral evaluator, a
settlement officer, or a settlement facilitator.

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(i) The justices spouse or registered domestic partner* a person within the
third degree of relationship* to the justice or his or her spouse or registered
domestic partner,* or the persons spouse or registered domestic partner,*
was a witness in the proceeding.

(j) The justice has received a campaign contribution of $5,000 or more

from a party or lawyer in a matter that is before the court, and either of the
following applies:

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(i) The contribution was received in support of the justices last

election, if the last election was within the last six years; or
(ii) The contribution was received in anticipation of an upcoming
election.

Notwithstanding Canon 3E(5)(j), a justice shall disqualify himself or herself

based on a contribution of a lesser amount if required by Canon 3E(4).

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ADVISORY COMMITTEE COMMENTARY: Canon 3E

Canon 3E(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 applicable provisions of the Code of Civil Procedure,
other provisions of the Code of Judicial Ethics, the Code of Conduct for United
States Judges, the American Bar Associations Model Code of Judicial Conduct,
and related case law.
The decision whether to disclose information under Canon 3E(2) is a
decision based on the facts of the case before the judge. A judge is required to
disclose only information that is related to the grounds for disqualification set
forth in Code of Civil Procedure section 170.1.
Canon 3E(4) sets forth the general standards for recusal of an appellate
justice. The term appellate justice includes justices of both the Courts of
Appeal and the Supreme Court. Generally, the provisions concerning
disqualification of an appellate justice are intended to assist justices in
determining whether recusal is appropriate and to inform the public why recusal
may occur.
The rule of necessity may override the rule of disqualification. For
example, a judge might be required to participate in judicial review of a judicial
salary statute, or might be the only judge available in a matter requiring judicial
action, such as a hearing on probable cause or a temporary restraining order. In
the latter case, the judge must promptly disclose on the record the basis for
possible disqualification and use reasonable efforts to transfer the matter to
another judge as soon as practicable.
In some instances, membership in certain organizations may have the
potential to give an appearance of partiality, although membership in the
organization generally may not be barred by Canon 2C, Canon 4, or any other
specific canon. A judge holding membership in an organization should disqualify
himself or herself whenever doing so would be appropriate in accordance with
Canon 3E(1), 3E(4), or 3E(5) or statutory requirements. In addition, in some
circumstances, the parties or their lawyers may consider a judges membership in
an organization relevant to the question of disqualification, even if the judge
believes there is no actual basis for disqualification. In accordance with this
canon, a judge should disclose to the parties his or her membership in an
organization, in any proceeding in which that information is reasonably relevant
to the question of disqualification under Code of Civil Procedure section 170.1,
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May 2011

Search website

Speaking up about judicial misconduct

Top Headlines
Opinion

By Janice M. Brickley

From the President

Highly publicized corruption scandals involving government officials

Janice M. Brickley

provide fertile ground for Monday morning pundits. They can also be a

Letters to the Editor

catalyst for education and positive change. Such is the case with the kids

MCLE Self-Study

for cash judicial corruption scandal in Luzerne County, Pennsylvania. In

Attorney Discipline

an article published in the March Bar Journal, I discussed the

You Need to Know

Pennsylvania Judicial Conduct Boards failure to follow through with a

Trials Digest
Public Comment

complaint concerning the judges involved in the scandal and what the California
Commission on Judicial Performance has done to ensure that its rules and procedures
are not susceptible to the failures that occurred in Pennsylvania. This article examines

Ethics Byte

the role of an attorney in exposing judicial corruption and abuse in the context of the

Contact Us

kids for cash scandal.

Marketplace
Archived Issues

Two former judges, Mark A. Ciavarella Jr. and Michael T. Conahan, were charged with
federal crimes based on their participation in a scheme to close down a county juvenile
detention facility and contract for the placement of juveniles with for-profit facilities in
exchange for a secret finders fee of $997,600. Juveniles were sent to the private
detention facilities by Ciavarella at the same time both judges were accepting payoffs
from the owner of the facilities. Conahan pleaded guilty to one count of racketeering
and in February, Ciavarella was convicted by jury of 12 felony counts, including
racketeering, conspiracy and money laundering conspiracy. Both men are awaiting
sentence.
The Report of the Pennsylvania Interbranch Commission on Juvenile Justice, issued last
May, examines the circumstances that led to the kids for cash scandal, including the
role of attorneys who appeared regularly before Judge Ciavarella in juvenile court.
While these attorneys were not privy to Ciavarellas financial arrangement with the
owners of the detention facilities, they did know that Ciavarella had a zero-tolerance
policy that resulted in juveniles being sent to detention facilities in unprecedented
numbers. Under Ciavarellas zero-tolerance policy, juveniles were automatically sent to
out-of-home placement for certain offenses, such as fighting in school, without an
individual evaluation of the circumstances of the offense or the offender contrary to a
judges obligation to decide sentences on a case-by-case basis.
Attorneys who regularly appeared in Ciavarellas courtroom also knew that he routinely
adjudicated and sentenced juveniles who were unrepresented by counsel without
obtaining the required waiver of the right to counsel. In 2003, the statewide percentage
of juveniles who waived the right to counsel was 7.9 percent; in Ciaverellas courtroom
the attorney waiver rate was 50.2 percent. Similar gaps appear in the statistics
throughout Ciavarellas five-year reign in juvenile court.
A criminal prosecutor is not only an advocate but, as a representative of the sovereign,
has a duty to seek justice, which includes the responsibility of seeing that the defendant
is accorded procedural justice. (Berger v. United States (1935) 295 U.S. 78, 88 [79

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L.Ed. 1314, 1321, 55 S. Ct. 629]; County of Santa Clara v. Superior Court (2010) 50
Cal.4th 35, 48.) Nowhere is this responsibility more important than in juvenile court.
Under the Pennsylvania Rules of Professional Responsibility, prosecutors have an
ethical obligation to ensure that the accused has been advised of the right to counsel
and has been given the opportunity to obtain counsel. (See also American Bar
Association Model Code of Professional Conduct 3.8 (b) [a prosecutor shall make
reasonable efforts to assure the accused has been advised of the right to, and the
procedure for, obtaining counsel and has been given reasonable opportunity to obtain
counsel . . .].) Before accepting a waiver of the right to counsel from juvenile
defendants, Pennsylvanias Rules of Juvenile Court Procedure require a judge to
conduct on-the-record discussions or colloquies to ensure that the juveniles
understand the right they are giving up. (See also Faretta v. California (1975) 422 U.S.
806 [45 L.Ed.2d 562, 95 S.Ct. 2525]; Iowa v. Tovar (2004) 541 U.S. 77 [158 L.Ed.2d
209, 124 S.Ct. 1379].) Yet, prosecutors regularly witnessed Ciavarella deciding cases of
unrepresented juveniles without first engaging in the required colloquies but said
nothing. The Report of the Interbranch Commission concluded that the prosecutors
clearly abdicated their roles as ministers of justice and simply became passive observers
to the tragic injustices that were perpetrated against juvenile offenders.
Jonathan Ursiaks first assignment when he joined the public defenders office in 2007
was to represent juveniles in Ciavarellas court. On a regular basis, he observed
juveniles admitting to crimes and being sentenced without an attorney and without the
required advisements of rights by the judge and waivers from the juveniles. This was
not the only practice in Ciavarellas courtroom that troubled Ursiak proceedings were
abbreviated, psychological evaluation reports were not provided to him before the
hearing, juveniles were being sent to placement at an alarmingly high rate, the judges
zero-tolerance policy impeded the juveniles right to be heard, and, in general, the
public defender was not given an adequate opportunity to advocate for his clients.
When Ursiak reported his concerns to his supervisor, he was told the public defenders
office did not need more clients. Undeterred, Ursiak provided assistance to the Juvenile
Law Center of Philadelphia, which was investigating the suspected abuses in Luzerne
Countys juvenile court.
Ursiaks courage and persistence in reporting Ciavarellas improper practices should be
applauded. However, the silence of other attorneys who knew of the abuses in
Ciavarellas courtroom is disturbing. Had others reported the misconduct when it first
occurred, the abuses and corruption might have been abated years earlier saving
countless youthful offenders from a harsh and draconian fate suffered at Ciavarellas
hand.
According to the Interbranch Commissions report, no attorney practicing in Ciavarellas
courtroom ever filed a complaint with the Pennsylvania Judicial Conduct Board, the
agency responsible for investigating complaints of judicial misconduct. Young
prosecutors recognized the inherent unfairness of Ciavarellas practices, but did not
know what to do or to whom to turn for guidance. Many defense attorneys who
appeared before Ciavarella were equally derelict. Public defenders and private attorneys
routinely witnessed Ciavarella violate the rights of juveniles, including their own clients,
yet most took no action. The Interbranch Commission found that these attorneys
clearly abdicated their responsibility to zealously defend their clients and to protect
their due process rights. At a bare minimum, the commission concluded, they
should have contacted their supervisors in the Public Defenders Office and the local bar
associations or notified the appropriate judicial or attorney disciplinary organizations.
Many factors can deter an attorney from reporting judicial misconduct indifference,
fear of retaliation, inexperience, ignorance. During its investigation, the Interbranch
Commission found that some attorneys did not know how or where to report judicial

misconduct. The commission encouraged Pennsylvanias Judicial Conduct Board to

partner with the Pennsylvania Bar Association to create and implement programs to
educate attorneys and the public on the existence of the judicial disciplinary board and
on how to report judicial misconduct. The commission also recommended that the
Judicial Conduct Board revise and update its Website to provide clear, simple
directions for filing complaints. In California, the Commission on Judicial Performance
works with the State Bar to provide information concerning the process for reporting
judicial misconduct. The commissions website offers user-friendly instructions on how
to file a complaint of judicial misconduct, as well as information on what constitutes
judicial misconduct.
As tragically illustrated in the kids for cash scandal, those in the legal community
share a mutual responsibility to take action when faced with abuses of judicial
authority. Indifference and inaction hurts not only the individual targets of the
misconduct but the reputation and integrity of the bar and the judiciary.
Janice M. Brickley is Legal Advisor to Commissioners at the California Commission
on Judicial Performance.

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TEMPORARY JUDGE CONTROVERSY

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16 May 2013

SHORTCUTS TO POPULAR
SUBJECTS AND POSTS

Sacramento Superior Court Judges Violate State Law & Code of Judicial
Ethics In Judge Pro Tem Conflict of Interest Disclosure Controversy

JUDICIAL MISCONDUCT

(72)

Family Court Judges Fail to Make Conflict of Interest

Disclosure - Hundreds of Cases Tainted by Error

ATTORNEY MISCONDUCT

(37)

SACRAMENTO FAMILY COURT NEWS ANALYSIS UPDATE

KICKBACKS
(33)

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(51)

MATTHEW J. GARY
(34)

FLEC
(28)
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(26)
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(23)
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(23)
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(22)
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(22)
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(21)
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(21)
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(19)
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(19)
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(19)
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(18)
Sacramento Family Court reform advocates say the tattered flag that flies above the courthouse is emblematic of the systemic rule oflaw
breakdown - including serial conflict of interest disclosure violations - which they assert has taken place in court proceedings.

DIVORCE CORP
(17)
DOCUMENTS
(17)

In hundreds of cases,Sacramento Family Court judges have failed to make critical conflict of interest
disclosures required bystate law and the Code of Judicial Ethics, according to a courthouse whistleblower.
The disclosure omission is ongoing and infects additional cases each week. The legitimacy of orders and
judgments in cases tainted by the error are subject to challenge by trial court set-aside motions or costly appellate
court review.

PAULA SALINGER
(15)

In most of the cases, one party is unrepresented and indigent - substantially reducing the chances that relief will
be sought, butnonethelessrequiring taxpayers to foot the bill in the event of subsequent proceedings due to the
error. The potential public financial liability is significant.The current cost to taxpayers for a single appeal is
between$8,500and$25,500, according torecentappellate courtdecisions.New court records leaked by a

CARLSSON CASE
(12)

ROBERT HIGHT
(14)
SACRAMENTO SUPERIOR
COURT
(13)

RAPTON-KARRES
(12)
APPEALS
(11)

whistleblower and posted online exclusively bySacramento Family Court News, including a conflict of interest
disclosure filed by a civil court judge, show that other Sacramento County Superior Court judges do comply
with conflict laws.
To continue reading, click Read more>> below...

The Legal Duty To Disclose

COLOR OF LAW SERIES

(11)
CONFLICT OF INTEREST

(11)
SATIRE
(11)

As Sacramento Family Court

News reported last year,
there are more than 60 family
law attorneys who also serve
as volunteer temporary judges
in Sacramento Family Court.

WHISTLEBLOWERS
(11)

The potential conflict of interest

error occurs when full-time
family court judges fail to
disclose to litigants when the
opposing party is represented
by an attorney who also serves
as a temporary judge.

LAURIE M. EARL
(10)

"It is overly-charitable to call

this a 'failure to disclose,'" said
a court source with direct
knowledge on the matter but
not authorized to speak on the
record. "The disclosure never
occurs. This is unwritten policy
and it amounts to
institutionalized concealment of
conflict issues that by law must
be disclosed. Each day that
this continues, more cases are
infected with the error and
subject to challenge."

SacramentoFamily Court
News has independently
Sacramento Family Court judges are required to disclose on the record
verified that the temporary
all information relevant to the question of disqualification.
judge disclosure is not being
made in cases where one party is unrepresented and the opposing party is represented by a judge pro tem
attorney. One alleged motive is to reduce the chance that a litigant will attempt to disqualify a judge for cause.
"Family court judges are knowingly ignoring the conflict disclosure law because it reduces the odds
that a litigant will try to disqualify the judge," the source explained. "This problemalso representsa
complete failureby court administrators, theJudicial Council, and theJudicial Branchoversight
communityto train, supervise and discipline family court judges."
In addition to violating state law - including California Rules of Court and the Code of Judicial Ethics - the
concealment effectively deprives a party of the right to challenge the judge - a potentially reversible error that
opens the door to subsequent collateral relief, according to the Judicial Counciland theCalifornia Judges
Association. Without the disclosure, "the judge may have concealed facts that would constitute a successful
challenge to the judge's improper failure to recuse him/herself, thereby effectively depriving the litigant of his/her
CCP 170.3 right to challenge the judge," according the CJA Ethics Opinion No. 45. The Ethics Opinion directive
is mirrored by the Benchguide:
"A judge must disclose on the record information the judge believes the parties or their
attorneys might consider relevant to the question of disqualification, even if the judge
believes there is no actual basis for disqualification...The parties should have an opportunity
to weigh this information when considering whether to challenge the judge...Even if the
parties decide to waive disqualification, disclosure helps ensure that they are fully informed
when they do so," according to the Benchguide.

Disclosure vs. Disqualification

In the context of the disqualification of a judge, the Benchguideemphasizes that no actual bias is required: "If an

WOODRUFF O'HAIR
POSNER and SALINGER

(11)
JAIME R. ROMAN
(10)

NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)
FERRIS CASE
(9)
JESSICA HERNANDEZ
(8)
ROBERT O'HAIR
(8)
CANTIL-SAKAUYE
(7)
JULIE SETZER
(7)
MATTHEW HERNANDEZ
(7)
YOUTUBE
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3rd DISTRICT COA
(6)
CIVIL RIGHTS
(6)
CHRISTINA ARCURI
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CONTEMPT
(5)
MIKE NEWDOW
(5)
THADD BLIZZARD
(5)
FAMILY LAW FACILITATOR

(4)
LUAN CASE
(4)
MALPRACTICE
(4)
THOMAS M. CECIL
(4)
CHILD ABDUCTION
(3)
VANCE W. RAYE
(3)
VEXATIOUS LITIGANT
(3)
RACKETEERING
(2)

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average person could entertain doubt about the judge's impartiality, disqualification is mandated," according to
section 2.16 of the Benchguide. In addition, under Code ofCivil Procedure 170.1(a)(6) bias may be implied
between a party and a judge that is not otherwise a statutory ground for disqualification, according to section 2.19
of the Benchguide. If bias or other conflicts are present, a judge must self-disqualify.

Sacramento Family Court News was recently leaked court documents showing examples where judges
disqualified themselves because they believed their recusal "would further the interests of justice" or because "a
person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." Click
here, here and here to view the court records.

The Flagrant Disclosure Problem

The egregious nature of the problem in Sacramento Family Court,and the distinction between disqualification and
disclosureis illustrated by an actual disclosureprovided by a whistleblower and filed by Sacramento County
Superior Court Judge Richard K. Sueyoshi. Upon being assigned a civil case at the downtown, Gordon D.
Schaber Courthouse, the judge complied with state law and disclosed to the parties and attorneys - on the record
- any potential conflict of interest issues. In a minute order, the judge wrote:
"Upon review of the information provided by the parties, the court finds no grounds for its
disqualification under Civil Procedure Code section 170.1. While it finds no basis for
disqualification, the court, in an abundance of caution, discloses to all parties the following
facts relating to [defendant's] counsel: (1) Prior to joining the bench, the court served as chair
of a county bar committee for which [defendant's attorney] served as a committee member.
The court's prior contact with [defendant's attorney] was limited to such context. (2) The court
currently serves as a member of the Strategic Evaluation Committee, which was formed by
the Chief Justice in March 2011 to evaluate and make findings and recommendations to
improve theefficiencyof the Administrative Office of the Courts." Click here to view the order.

Californians Aware

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Judge Sueyoshi disclosed a potential conflict with an attorney who he served with on a county bar committee
before he became a judge. Sacramento Family Court judges currently, as sitting judges, meet monthly with the
controversialSacramento County Bar Association Family Law Executive Committee, and often attend and
speak at the monthly luncheon meetings of the Bar Association Family Law Section.

California Official Case Law

All of the attorneys on the Executive Committee and many in the Family Law Section also serve as temporary
judges in the same court. Yet the full-time family court judges do not disclose this critical information to opposing
parties and attorneys as required by state law. For additional information about the troubling monthly meetings of
judges, court administrators, and the Family Law Executive Committee, click here.

California Statutes

The Conflict
A self-evident potential conflict of
interest exists when a private, forprofit attorney representing a client
appears in a court where the same
lawyer also serves as a volunteer
temporary judge.

The full-time judge hearing the case is

responsible for disclosing the
potential conflict to the opposing party
or attorney.

The disclosure is required by state

law, includingCode of Civil
Procedure Sec. 170.1,Canon 2A
and subsections of Canon 3 of the
Code of Judicial Ethics, and
theCalifornia Rules of Court
Standards for Judicial
Administration, Standard 10.20.

The reasons for the disclosure include

ensuring that courtroom proceedings
are conducted free of conflicts of
interest and in a manner that is fair
and impartial to all participants, and

Google Scholar-Includes
Unpublished Case Law

CALIFORNIA JUDICIAL
BRANCH
California Courts
Homepage
California Courts YouTube
Page
Judicial Council
Commission on Judicial
Performance
Sacramento County Family
Court
3rd District Court of Appeal
State Bar of California
State Bar Court
Sacramento County Bar
Association

Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
ABA Family Law Blawg

providing an opposing party all

information necessary to make an
informed decision whether to seek
disqualification of the judge,
according to several authorities,
including Canons 3B(5), 3E(2), and
the Judicial CouncilCalifornia
Judges Benchguide.

Directory
California Coalition for
Families and Children
California Protective
Parents Association
Sacramento Family Court judges failure to disclose judgepro tem

conflict issues jeopardizes hundreds of orders & judgments.

"A judge must disclose on the record information the judge believes the parties or their attorneys
might consider relevant to the question of disqualification, even if the judge believes there is no
actual basis for the disqualification...the parties should have an opportunity to weigh this information
when considering whether to challenge the judge," according to the Benchguide.
The language of Canon 3E(2) mirrors the Benchguide:
"In all trial court proceedings, a judge shall disclose on the record information that is reasonably
relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the
judge believes there is no actual basis for disqualification."
In addition, under CCP170.1(a)(6), bias may be implied from a connection between a party and a judge that is not
a statutory ground for disqualification under CCP170.1, according to the Benchguide.The conflict disclosure is
considered so critical that it should even be made when the attorney in question is not a judge pro tem, but works
at a law firm where another member of the firm is a temporary judge, according to a 2001 Ethics Update from the
California Judges Association.

And under theCode of Judicial Ethics, every judge pro tem attorney must take or initiate appropriate corrective
action if they become aware that another judge has violated any provision of the Code. Click here. To view a
Judicial Council directive about required corrective actions, click here. There is no known case of a temporary
judge attorney complying with this important, self-policing requirement.
The California Commission on Judicial Performance has disciplined judges for violating the Code of Judicial
Ethics provisions that apply to conflicts of interest. Click here for examples ofCJP conflict of interest disciplinary
decisions.

Judge Pro Tem Conflict Disclosure History

TheEthics Committee of the California Judges Association provides all judges both full-time and temporary
with advisory Ethics Opinions and JudicialEthics Updates. The updates have been cited by the California
Supreme Court, appellate courts, and the Commission on Judicial Performance. The Judicial Council uses
CJA Ethics Opinions in the California Judges Benchguide. The California Code of Judicial Ethics is partly
based on the former CJA Code of Judicial Conduct, which was the original judicial standards code in the state.

Center for Judicial

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Divorced Girl Smiling
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FindLaw
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Total Pageviews

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183

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In an Ethics Update issued in February,1992, the committeeadvised that full-time judges do not have to
disqualify themselves when an attorney who also acts as a temporary judge in the same court appears before the
judge.The 1992Ethics Update advised that a judge should disclose knowledge of the attorneys judge pro tem
service to all parties and other attorneys.

In essence, the full-time judge is hearing a case in which a colleague - a part-time judge in the same court - is
acting as a private, for-profit attorney. A judge who fails to disclose her or his knowledge that the attorney is a
judge pro tem may violateCanons 2, 3C(1) and 3D of the Code of Judicial Ethics, according to the 1992 Ethics
Update, which was based on the 1992 version of the Code of Judicial Ethics.

Code of Judicial Ethics 1996 Revision

The Code of Judicial Ethics was updated in 1996.The revision changed the disclosure requirement from being
optional ("judge should disclose"), to being mandatory ("judge shall disclose"). Since 1996, disclosure of potential
conflict issueson the recordis not optional. CJA emphasized the significance and ramifications of the change in
Ethics Opinion No. 45, issued in January, 1997.
"If the judge fails to disclose...the judge may have concealed facts that would constitute a
basis for a successful challenge to the judge's improper failure to recuse him/herself, thereby
effectively depriving the litigant of his/her CCP 170.3 right to challenge the judge," according to
the CJA Opinion.
In a March, 2001 Ethics Update, CJA advised judges to apply a similar standard when an attorney serves pro tem
in the judges court and a member of the attorneys firm appears before the judge. CJA warned judges that failing
to make the disclosure on the recordmay violate Canon 3 of the Code of Judicial Ethics. Canon 3E
requiresthat "In all trial court proceedings, a judge shall disclose on the record information that is reasonably
relevant to the question of disqualification...even if the judge believes there is no actual basis for disqualification."

Other State and Federal Laws

Sacramento Family Court judges who fail to disclose judge pro tem attorney conflicts also may be in violation of
other state and federal laws, according to courthouse sources. As Sacramento Family Court News reported in
2011, in September of that year the California Whistleblower Protection Act was revised to encompass the
Judicial Branch of government, including judges, administrators and court employees.

The conflict of interest disclosure issue may constitute an improper governmental activity under the Act. Willful
omission to perform duty and activities that are economically wasteful, involve gross misconduct, incompetency or
inefficiency are all included in the definition of an improper governmental activity.
The massive scope of the conflict of interest disclosure problem may expose the court to financial liability in acivil
lawsuitfor the deprivation of civil and constitutional rights and other grounds.Federalcriminal statutesalso may
apply. Federal criminal law prohibitsconspiracy against civil rightsanddeprivation of rights under color of
law.

Sacramento Family Courtreceives federal funding, and court users have a federally protected right to honest
services. Family court judges and administrators who fail to provide honest services to the public may be subject
tocriminal prosecutionunderfederal law.
Click here to view the list of attorneys who also serve as volunteer temporary judges.
Sacramento Family Court News acknowledges the anonymous sources who initially provided us with information for this article. We appreciate the tips. To send us
your anonymous tip by email, use our Contact Page. All communications are protected by the reporter's privilege and the California Shield Law. For further details
about our confidentiality policy, see our About Page and our Terms & Conditions Page. This is an updated version of an article originally published in April, 2012.

PR Brown
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HOME

TEMPORARY JUDGE CONTROVERSY

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ABOUT SFCN

3rd DISTRICT COA CONTROVERSY

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15 July 2014

SHORTCUTS TO POPULAR
SUBJECTS AND POSTS

Judge Robert Hight Misconduct: Supreme Court Committee Confirms

Systemic Judge Pro Tem Conflict of Interest Disclosure Law Violations

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Sacramento Superior Court Judges Continuing

Failure To Disclose Judge Pro Tem Conflicts Violates
Supreme Court Committee on Judicial Ethics
Opinions Directive

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In May, 2013 Sacramento Family Court News reported that family court judges were violating state law by failing to disclose to opposing
parties when a judge pro tem represents a client in court. The violations remain ongoing.

An attorney andSacramento Family Court News reader provided the California Supreme Court Committee on
Judicial Ethics Opinions Formal Opinionembedded at the bottom of this post. The opinion provides yet another
legal reference specifying that family court judges must disclose potential conflicts of interest on the record. At
court hearings where no court reporter is present, the disclosure must be in writing, according to the CJEO.

To continue reading, click Read more >> below:

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In our original May, 2013 investigative report, we provided the legal authority, including Judicial Ethics Updates
and Ethics Opinions from the California Judges Associationrequiring judges to disclose to opposing parties
and attorneys when a judge pro tem attorney represents a client in court. As we reported at that time, in violation
of state law family court judges were failing to make the required disclosure. The violations remain ongoing, and
hundreds of cases are tainted by the error.Sacramento County Superior Court Presiding Judge Robert Hight
is responsible for the oversight of temporary judges, according to the CJA, the Code of Judicial Ethics and
otherauthority.Click here to view our 2013 report.

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(12)

Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter.
For additional reporting on the people and issues in this post, click the corresponding labels below the document:

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Family Court Judge Pro Tem Conflict of Interest Disclosure Law - California Supreme Court Committee on

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CALIFORNIA SUPREME COURT

COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov

CJEO Formal Opinion No. 2013-002

[Issued December 11, 2013]

DISCLOSURE ON THE RECORD WHEN THERE IS NO COURT REPORTER

OR ELECTRONIC RECORDING OF THE PROCEEDINGS

I.

Question Presented
The Committee on Judicial Ethics Opinions has been asked to provide an opinion

on the following question:

What constitutes an on the record disclosure by a trial judge pursuant to canon
3E(2)(a) of the Code of Judicial Ethics when there is no court reporter or
electronic recording of the proceedings?
II.

Summary of Conclusions
The Code of Judicial Ethics requires that all disclosures be made on the record.

(Cal. Code of Jud. Ethics, canon 3E(2)(a).) Oral and implied disclosures that are not
made part of the record do not satisfy the canon. The simplest way for a judge to ensure
that a disclosure is part of the record is to state the disclosure in open court when a court
1

reporter is transcribing the proceedings or an electronic recording is being made of the

proceedings. However, not all proceedings are reported or electronically recorded. In
those circumstances, a judge must take steps to ensure that a document describing the
nature of any information being disclosed is made part of the case file and must also
make the disclosure orally in open court or otherwise notify the lawyers and parties of the
written disclosure.
III.

Introduction
Canon 3E(2)(a) of the California Code of Judicial Ethics requires judges in all trial

court proceedings to disclose "on the record" any information that is reasonably relevant
to the question of disqualification under Code of Civil Procedure section 170.1, even if
the judge believes there is no actual basis for disqualification. Making disclosures in
open court when an official court reporter is transcribing the proceedings, or when the
proceedings are being electronically recorded and may be transcribed, is a simple and
efficient way to ensure that they are part of the record. However, due to recent court
budget cuts, more and more matters are being heard without benefit of a reporter or
electronic recording. Because a judicial officer must nonetheless satisfy canon 3E(2)(a)
and make on the record disclosures of information reasonably relevant to the question
of disqualification, the committee has been asked how judges can satisfy this ethical
obligation when there is no court reporter and no electronic recording. To provide
guidance, this opinion addresses what constitutes a record and how to make a disclosure
on the record.1

Campaign contribution disclosures under canon 3E(2)(b) and Code of Civ. Pro.
170.1(a)(9)(C) are not encompassed in the question posed to the committee and are
beyond the scope of this opinion. The committee may address on the record
disclosures in these special circumstances in a separate opinion.
2

IV.

Authorities
A.

Applicable Canons2

Canon 3E(2)(a): E. Disqualification and Disclosure. . . . (2) In all trial court

proceedings, a judge shall disclose on the record as follows: . . . (a) Information relevant
to disqualification. A judge shall disclose information that is reasonably relevant to the
question of disqualification under Code of Civil Procedure section 170.1, even if the
judge believes there is no actual basis for disqualifications.
B.

Other Authorities

California Code of Civil Procedure, sections 170.1, 170.1(a)(9)(B)-(C), 170.5(f),

269(a)-(b), and 1904.
Government Code, sections 68086, 68151(a)(1), (2), and (3), 68152(j)(14), 69957.
California Rules of Court, rules 2.952. 2.956(c) and (e)(1), 8.120(a), 8.122(b),
8.128(a), 8.320(a)-(b), 8.336(c), 8.388(b), 8.407(a), 8.480(b), 8.610(a), 8.832(a), 8.835,
8.860(a), 8.863, 8.867, 8.868, 8.910(a), 8.914, 8.920, 8.957 and 10.500(c)(1).
California Welfare & Institutions Code, sections 347, 677.
Adams v. Commission on Judicial Performance (1995) 10 Cal.4th 866, 903-906.
Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 113.
Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 893-894.
Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 932.
People v. Dubon (2001) 90 Cal.App.4th 944, 954.
California Judges Association, Ethics Committee Advisory Opinions 45, and 48.
Rothman, California Judicial Conduct Handbook (3d ed. 2007) section 7.73.

All further references to canons and to Advisory Committee commentary are to

the California Code of Judicial Ethics unless otherwise indicated.
3

V.

Discussion
Canon 3E(2)(a) of the California Code of Judicial Ethics requires judges in all trial

court proceedings to make an "on the record" disclosure of information that is reasonably
relevant to the question of disqualification under Code of Civil Procedure section 170.1,
even if the judge believes there is no actual basis for disqualification.3 While the Code of
Judicial Ethics does not define on the record, California Supreme Court decisions and
other authorities interpreting canon 3E(2)(a) make clear that oral and implied disclosures
that do not become part of the record are insufficient (Adams v. Commission on Judicial
Performance (1995) 10 Cal.4th 866, 903-906 [general knowledge, affirmative references,
and incomplete oral disclosures constitute failure to disclose on the record for purposes of
waiver]; Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 893894 [no evidence of disclosure on the record where the judge claimed to have advised of
ex parte contacts at an in chambers sentencing with no record of the proceedings]; Cal.
Judges Assoc., Formal Ethics Opinion No. 45 (1997) p. 6 [the record or the clerks
minutes of the proceedings must reflect a disclosure and merely mentioning to counsel is
insufficient]; Cal. Judges Assoc., Formal Ethics Opinion No. 48 (1999) p. 6 [implied
disclosure does not satisfy the requirement of disclosure on the record]).
These authorities raise the question of what constitutes a record in trial court
proceedings and, more specifically, how to accomplish making a disclosure part of the
record where there is no record of oral proceedings.
A.

What constitutes a record?

Because the canons do not define on the record for purposes of judicial
disclosures, we look to other sources for guidance. Several statutes define records of
court proceedings in broad terms. The Code of Civil Procedure defines a judicial record
as the record or official entry of the proceedings in a Court of justice, or of the official
3

The committee has not been asked to provide an opinion on the sufficiency of any
particular disclosures under the Code of Judicial Ethics and other statutes.
4

act of a judicial officer, in an action or special proceeding (Code Civ. Proc., 1904).
For purposes of trial court record management, the Government Code provides that a
court record consists of . . . [a]ll filed papers and documents in the case . . . ,
[a]dministrative records filed in an action or proceeding . . . [including] . . . transcripts,
and tapes of electronically recorded proceedings filed, lodged, or maintained in
connection with the case . . . , and other records, including minutes ( 68151(a)(1), (2),
(3), 68152(j)(14)). For purposes of judicial administration record requests, an
adjudicative record is defined as . . . any writing prepared for or filed or used in a court
proceeding . . . . (Cal. Rules of Court, rule 10.500(c)(1).)
The rules of court governing appellate matters are instructive because they narrow
the broad scope of trial court records for purposes of review on appeal. Those rules
specify that a record of trial court proceedings contains two parts: (1) the record of oral
proceedings, and (2) the record of written documents. (See, Cal. Rules of Court, rules
8.120(a)-(b) [civil appeals], 8.320(a)-(c) [criminal appeals].)
1.

Record of Oral Proceedings

A record of proceedings is required to be made by an official shorthand court

reporter in juvenile proceedings (Welf. & Inst. Code, 347, 677) and in felony
proceedings when requested by the defendant or prosecution (Code Civ. Proc., 269,
subd. (a)(2)). Except in those matters where a reporter is required, local courts have the
discretion to decide, as a matter of court administration, whether an official reporter is
made available. (Welf. & Inst. Code, 347, 677; Code Civ. Proc., 269, subd. (a)(2);
Cal. Rules of Court, rule 2.956(e)(1).) In general civil matters where an official court
reporter is not made available by the court, the parties may arrange for the presence of a
certified shorthand reporter at their expense. (Gov. Code, 68086; Cal. Rules of Court,
rule 2.956(c).) In all proceedings where a shorthand reporter makes a verbatim record, an
official transcript of the proceedings may be requested. (Code Civ. Proc., 269, subd.
(b).) Thus, in those proceedings where a court reporter is present, oral disclosures made
in open court will be "on the record" as required by canon 3E(2)(a).
5

In some proceedings where neither the court nor a party provides an official
shorthand reporter, the local court may elect to make electronic recording equipment
available. (Gov. Code, 59957 [electronic recording is permitted by statute in limited
civil, misdemeanor, and infraction proceedings only].) Written transcripts of official
electronic recordings may be prepared at the request of the court or a party. (Cal. Rules
of Court, rule 2.952(g).) In some circumstances, the electronic recording may be used as
the record of oral proceedings in lieu of a reporter's transcript prepared from the
recording. (Cal. Rules of Court, rule 2.952(i), (j).) Oral disclosures made in open court
at proceedings that are electronically recorded will also be "on the record" as required by
canon 3E(2)(a).
Although court reporters are statutorily required in juvenile and felony matters and
courts are authorized to provide electronic recording equipment in certain proceedings as
noted above, as a matter of practical reality and current economic constraints, neither
reporters, nor recording equipment, will be available in large numbers of proceedings that
come before the courts every day. Where there is no oral record, the record of written
documents becomes significant to the question of how a trial judge complies with the
obligation to make disclosures "on the record."
2.

Record of Written Documents

While there is no definition of a record for purposes of judicial disqualification,

appellate rules identify what documents are recognized as the record of proceedings for
purposes of review. On appeal, the record of written documents is set forth in the clerks
transcript, which generally includes notices, judgments, orders, minute orders, court
minutes, the register of actions, and other documents filed or lodged in the case (Cal.
Rules of Court, rules 8.120(a)(A), 8.122(b), 8.320(b), 8.336(c), 8.388(b), 8.407(a),
8.480(b), 8.610(a)(1), 8.832(a), 8.860(a)(1)(A), 8.910(a)(1)(A), 8.920(1)). In some
appellate matters, however, the record of written documents may alternatively consist of
the courts file, where allowed by local rule (Cal. Rules of Court, rules 8.120(a)(C),
8.128(a), 8.860(a)(1)(B), 8.863, 8.910(a)(1)(B), 8.914, 8.920(1)). In small claims
6

appeals, the record on appeal will always consist of the court file and all related papers
(rule 8.957).
For purposes other than judicial disqualification, several courts have evaluated
specific court documents and found that minute orders and the courts official minutes
suffice as a record when entered in the case file (People v. Dubon (2001) 90
Cal.App.4th 944, 954 [a minute order qualified as a record]; Copley Press, Inc. v.
Superior Court (1992) 6 Cal.App.4th 106, 113 [official court minutes accurately and
officially reflect the work of the court]; Michael v. Aetna Life & Casualty Ins. Co. (2001)
88 Cal.App.4th 925, 932 [a court order is a document that is either entered in the court's
permanent minutes or signed by the judge and stamped filed]).
From these cases and the rules of court, we conclude that all documents filed,
entered, or lodged in the case file constitute a trial courts written record of proceedings.
Such documents include minute orders, the official clerks minutes, and formal orders
entered in the case file. Thus, when there is no court reporter or electronic recording, and
therefore no record of oral proceedings, disclosures must be made part of the written
record of proceedings in order to be on the record pursuant to canon 3E(2)(a).
B.

How To Accomplish Making A Disclosure Part of the Record

Where there is not a reporters transcript or electronic recording, an oral disclosure

may be made part of the written record of proceedings by preparing and entering a
disclosure document in the court file. The written disclosure may take many forms. It
may be a brief handwritten document that outlines the information disclosed. It may also
take the form of a formal, complete statement, detailing the content of the disclosure.
The written disclosure may also be entered in the case file in the form of a minute
order or official court minutes. However, merely having the clerk enter in the minutes
that a disclosure has been made would be insufficient. (Adams v. Commission on
Judicial Performance, supra, 10 Cal.4th 866, 903-906.) When this procedure is used, the
minutes should reflect both the fact that the disclosure was made and the nature of the
information disclosed. Although the task of documenting the disclosure may be
7

delegated to a clerk, ultimately it is the judge's responsibility to confirm that the nature of
the disclosure has been accurately documented and made a part of the case file. (See
Adams v. Commission on Judicial Performance, supra, 10 Cal.4th 866, 906 [failure to
disclose on the record in general terms the nature of the disqualifying relationship was
improper for purposes of waiver].)
Moreover, because disclosures are intended to provide the parties and lawyers
appearing before a judge with the information being disclosed, simply filing a written
disclosure document in the court file is not sufficient. (See Rothman, Cal. Judicial
Conduct Handbook (3d ed. 2007) 7.73, p. 381 [purpose of canon 3E(2) is to provide the
parties and their counsel with information relevant to recusal determinations].) To
comply with the canons, a judge making disclosures where there is no court reporter or
electronic recording must document the disclosure as noted above and make the
disclosure orally in open court or otherwise notify the lawyers and parties of the written
disclosure.
VI.

Conclusions
In order to comply with the canon 3E(2)(a) requirement that disclosures be made

on the record, trial court judges hearing matters that are not reported or electronically
recorded must ensure that any disclosures become a part of the written record of
proceedings. To accomplish this, disclosures must be documented in a writing that is
entered in the case file as a minute order, official clerks minutes, or a formal order. The
lawyers and parties must also be notified orally or otherwise by service of the written
disclosure document.
As guidance, the committee provides the following steps that may be taken in all
cases where disclosure is required:
1. If the proceeding is being reported or electronically recorded, make an oral
disclosure in open court, stating in general terms the nature of any information
being disclosed.
2. If the proceeding is not being reported or electronically recorded:
8

a) Prepare or have prepared a disclosure document that states in general terms

the nature of any information disclosed;
b) Enter the disclosure document in the case file as a minute order, official
court minutes, or a formal order;
c) Make an oral disclosure in open court or otherwise notify the lawyers and
parties of the written disclosures; and
d) Check to confirm that the disclosure document accurately states the
information disclosed and that it is entered in the case file.

This opinion is advisory only (Cal. Rules of Court, rules 9.80(a), (e); Cal. Com.
Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rules 1(a), (b)). It is based
on facts and issues, or topics of interest, presented to the California Supreme Court
Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,
rule 9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the
committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)).

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08 June 2011

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SUBJECTS AND POSTS

Family Law Divorce Attorneys Jacqueline Eston and Nancy Perkovich

Judge Pro Tems Promote Software Sold by Wife of Hon. Matthew J. Gary

JUDICIAL MISCONDUCT

(72)

Judge Matthew Gary Fails To Disclose Wife's

Software and Legal Services Companies Conflict of
Interest

ATTORNEY MISCONDUCT

(37)

(updated)

JUDGE PRO TEM

(51)

MATTHEW J. GARY
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(19)
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Judge Pro Tems and family law attorneys Jacqueline Eston and Nancy Perkovich help promote client management software sold by
Donna Gary, wife of family court Judge Matthew J. Gary. Source: Sacramento Business Journal.

Donna Gary, the wife of Judge Matthew J. Gary has begun selling ClientTickler, a client management software
program for attorneys, according to the Sacramento Business Journal.
"ClientTickler costs no more than $150 per user and has applications far beyond law firms. Busy
soccer moms juggling a myriad of kid activities, for example. Or hair dressers who want to be free to
fire off a message to a client who hasn't been in for a while. Gary has sunk more than $50,000 into
the product, but expects to double that this month when she markets the launch. A trademark is
pending," reported the Journal.
The Journal coverage includes a photo of Donna Gary with Sacramento divorce and family law attorneys
Jacqueline Eston and Nancy Perkovich endorsing the product. Both Eston and Perkovich also serve as
temporary judges in Sacramento Family Court.
"Jackie Eston, like Gary, was an administrative staffer for years. Then she went to law school. Now
she practices family law in her own Sacramento office. 'There are lots of reminders and ticklers out
there, but this one really does what Donna says,' Eston said. 'I use (other) computer systems as well,
but none really do what the little box did,' Eston added. 'It's hard to be a lawyer and a businessperson
- and this helps.'"

COLOR OF LAW SERIES

(11)
CONFLICT OF INTEREST

(11)
SATIRE
(11)
WHISTLEBLOWERS
(11)
WOODRUFF O'HAIR
POSNER and SALINGER

(11)
JAIME R. ROMAN
(10)
LAURIE M. EARL
(10)
NO CONTACT ORDERS
(10)
SHARON A. LUERAS
(10)
FERRIS CASE
(9)

To continue reading, click Read more>> below...

JESSICA HERNANDEZ
(8)
Family court watchdogs point out that every attorney who appears in the courtroom of family court Judge Matthew
J. Gary is either a potential customer of his wife, or is a customer of his wife, requiring the judge to disclose the
potentialconflict of interest in cases where one party is self-represented. "Of course, no one has ever heard of
Gary disclosing the conflict of interest, which is required by required by the Code of Judicial Ethics," said
watchdog Robert Saunders.

In the event of a conflict of interest, state law requires judges to disqualify themselves if, for example, a person
aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial, or if the judge
believes her or his recusal would further the interests of justice. To view a filed order where a judge self-

ROBERT O'HAIR
(8)
CANTIL-SAKAUYE
(7)
JULIE SETZER
(7)
MATTHEW HERNANDEZ
(7)
YOUTUBE
(7)

disqualified on these grounds, click here.

California Judicial Council Standards

The California Judges Benchguides series published by the Judicial Council includes a volume on
Disqualification of a Judge. Click here to view the complete publication. Section 2.14 of the Benchguide covers
the issue of the connection between a judge's family member and an attorney or party in a case. The section
indicates that Judge Gary has, at a minimum, a legal duty to disclose on the record the potentialconflictof interest
posed by his wife's business. Click here.

Disclosure provides the parties an opportunity to weigh the information when considering whether to challenge the
judge, according to the Benchguide. The Benchguide also emphasizes that no actual bias is required, and that
bias may be implied from a connection between a party and a judge that otherwise is not a statutory ground for
disqualification. Click here and here.

Disclosure vs. Disqualification

Under state law, even if a
judge believes there is no
actual basis for disqualification,
they must still disclose on the
record information the judge
believes the parties or their
attorneys might consider
relevant to the question of
disqualification. Click here for
the applicable California
Rules of Court and Code of
Judicial Ethics Canon cited
by the judge disqualification
Benchguide.
In this minute order,
Sacramento County Superior
Court Judge Richard K.
Sueyoshi complied with state
law applicable to the disclosure
of information relevant to the
question of disqualification:
"While it finds no basis
for disqualification,
the court, in an
abundance of caution,
discloses to all
parties, the following
facts relating to
[defense] counsel: (1)
Prior to joining the
Judge Matthew Gary is required to disclose on the record information relevant to thequestion
bench, the court
of disqualification even if he believes there is no actual basis fordisqualification,
served as chair of a
according to this Benchguide from the Judicial Council.
county bar committee
for which [defense counsel] served as a committee member. The court's prior contact with
[defense counsel] was limited to such context. (2) The court currently serves as a member of
the Strategic Evaluation Committee, which was formed by the Chief Justice in March 2011 to
evaluate and make findings and recommendations to improve the efficiency of the
Administrative Office of the Courts." Click here to view Judge Sueyoshi's written disclosure.
All family court judges also are required to disclose to opposing parties on the record the potential conflict of interest
that occurs when a judge pro tem appears in court as private counsel. Court watchdogs who have conducted
informal audits of a number of family court case files say there is no indication that the conflict disclosure has ever
been made.

"This is yet another example of the flagrant cronyism between judges and family law attorneys who also act as
judge pro tems. Since there is no oversight or accountability for judges who violate ethics rules, they don't even
bother to conceal it," Saunders said.

3rd DISTRICT COA

(6)
CIVIL RIGHTS
(6)
CHRISTINA ARCURI
(5)
CONTEMPT
(5)
MIKE NEWDOW
(5)
THADD BLIZZARD
(5)
FAMILY LAW FACILITATOR

(4)
LUAN CASE
(4)
MALPRACTICE
(4)
THOMAS M. CECIL
(4)
CHILD ABDUCTION
(3)
VANCE W. RAYE
(3)
VEXATIOUS LITIGANT
(3)
RACKETEERING
(2)

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In addition, under the Code of Judicial Ethics, as sworn temporary judges both Eston and Perkovich are required
to take or initiate appropriate corrective action if they receive reliable information that another judge has
violated any provision of the Code. The mandatory requirement is a critical self-policing component of judge ethical
standards. Click here to view a Judicial Council directive about the duty to take corrective action and the types of
actions required.

Donna Gary also owns Legal Administrative Services, which provides billing and bookkeeping for law firms.
Gary's company also helps lawyers who want to leave law firms and strike out on their own. She's handled more
than 35 local startups, according to the Journal.

Judge Matthew J. Garyis paid $169,289 per year, and was

appointed to the bench byGov. Arnold Schwarzeneggerin
2007. Schwarzenegger was named in the 2010Worst
Governors Reportby the government watchdog
groupCitizens for Responsibility and Ethics in
Washington.Among other charges, Schwarzeneggerwas
faulted forproviding "state jobs to friends with dubious
qualifications."Click here.

In a2007 interviewwithSacramento Lawyermagazine,

Gary characterized his legal philosophy as "favoring judicial
restraint,"and said he admiredU.S. Supreme Court
JusticeAntoninScalia.

Judge Gary wasfound guilty in 2010bySan Joaquin

County Superior Court Judge Xapuri B. Villapuduaof not
following proper contempt procedures when he had a
disabled litigantarrested and forcibly removedfrom his
courtroom.
Governor Arnold Schwarzenegger.

Gary is a graduate ofEl Camino High Schoolin Sacramento

and previously worked at his fathers law firm,Gary, Till & Burlingham. His father,Richard Gary,is a family law
attorney. Links on the firm'sresources pageinclude theChristian Legal Societyand theChristian Counseling
& Educational Foundation.
Related articles:

Unpublished Case Law

California Statutes

CALIFORNIA JUDICIAL
BRANCH
California Courts
Homepage
California Courts YouTube
Page
Judicial Council
Commission on Judicial
Performance
Sacramento County Family
Court
3rd District Court of Appeal
State Bar of California
State Bar Court
Sacramento County Bar
Association

Local & National Family CourtFamily Law Sites & Blogs (may
be gender-specific)
ABA Family Law Blawg
Directory
California Coalition for
Families and Children

Click here for articles about conflicts of interest.

Click here for our coverage of Judge Matthew Gary.
Click here for articles about judge pro tem attorneys.
Click here for our exclusive list of temporary judge attorneys.
Click here for posts about family court watchdogs.
Click here for our coverage of Robert Saunders.

California Protective
Parents Association
Center for Judicial
Excellence
Courageous Kids Network

Click here for articles about family court whistleblowers.

Divorce & Family Law News

Click here for posts about court employee misconduct.

Divorce Corp

For additional coverage of the people and issues in this post, click the corresponding labels below:

Divorced Girl Smiling

Family Law Case Law from

FindLaw
Family Law Courts.com
Family Law Updates at
JDSupra Law News
Fathers 4 Justice
HuffPost Divorce
Leon Koziol.Com

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1:21 PM

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