Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

The Marrying Judge and Judicial Disqualification

Wechsler v. Superior Court (Fourth Appellate Dist., Div. 1, case no.  D064919, filed 3/4/14) is the latest iteration of an old story.  Litigant learns of information that suggests (to the litigant) the adjudicator may be less than impartial.  The nature of the information may vary;  sometimes  (as in Wechsler) it suggests that there is some personal connection between the adjudicator and the  opposing litigant or opposing counsel; sometimes it is statements that the adjudicator has made in court, combined with adverse rulings;  in at least one case I know of (I am sure there are more) it is that the adjudicator has made a complaint to the State Bar about the litigant's attorney that was ill founded.  In most cases, the litigant or the litigant's counsel is absolutely convinced that the adjudicator is not being impartial, and this information explains why.

Litigant and litigant's counsel sally forth and attempt to disqualify adjudicator, only to run into a high wall:  Code of Civil Procedure section 170.1(a)(6)(A)(iii))., which provides a judge shall be disqualified if "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial."   Litigant, thinking like a litigant, believes that no person aware of the facts could reasonably doubt that the judge is partial.  But the litigant is not the person that section 170.1 is talking about.

The section as written seems to set a low bar.  "Might reasonably entertain a doubt" doesn't sound like it demands compelling evidence of partiality.  But we are dealing with that problem child of the law, the Reasonable Person, that miraculous being free of bias or prejudice who can evaluate the facts in cold light.  Although actual bias does not have to be shown, the reasonable appearance of impropriety must be established (Haworth v.Superior Court (2010) 50 Cal.4th 372, 389.

There are obvious reasons for setting a high bar to disqualification.  The first is that one side or the other or both in litigation may not like how the judge is ruling, and may have a very clear interest in a change of forum.  Pushing against this is the adjudicator's duty to adjudicate the case.  The second is that changing judicial assignments is wasteful and disruptive.  So motions to disqualify are going to be disfavored for good reasons.

 The Wechsler court considered this a "close ethical issue" (slip opn. at pg. 6) and one that is likely to reoccur.  The adjudicator had objected to the motion to disqualify and stated that she was "acquainted with... counsel ..., for the past few years through her appearances in my court and through our respective appearances at professional legal functions. [We are] not otherwise acquainted or 'personally close' ...".  Mr. Wechsler, the moving party argued on appeal that the mere act of officiating at a wedding should merit disqualification.

Judges are not hermits, cut off from all interaction with society and their former profession. And we would not want them to be (People v. Carter (2005) 36 Cal.4th 1215, 1243.   In Carter, a murder defendant moved to disqualify the trial judge for having a casual social relationship with the prosecutor, with whom she had once worked, over a period of 16 years.  The motion was denied and the issue raised in the mandatory death penalty appeal. The Supreme Court faulted defendant for not following procedure but stated that these facts did not establish a reasonable appearance of prejudice.

The Wechsler court reasoned that if the facts of Carter did not show a reasonable appearance of bias, then the facts before them certainly did not.  But the Wechsler court also cautioned that these facts were not irrelevant to the question of impartiality and that ajudicators should disclose that they are officiating at counsel's wedding under Code of Judicial Ethics, canon 3E(2)(a).

Wechsler has, in the end, something for everyone.  Counsel for a litigant who is unhappy with an adjudicator should bear in mind that motions to disqualify must meet the high burden described in the case law.  Adjudicators should bear in mind that more disclosure is almost always a good thing and may be mandated.

– David Cameron Carr

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**