Supreme Court Committee Issues Advice About Appellate Disqualification to a Former Trial Court Judge

A state Supreme Court committee today posted a summary of oral advice given to an appellate justice about disqualification for a prior assignment as a coordination judge in a matter now on appeal before the justice.

In a summary of the advice, the Supreme Court Committee on Judicial Ethics Opinions concludes that the justice has no mandatory duty to disqualify from hearing the appeal under the Code of Judicial Ethics because the inquiring justice made no decisions in the matter, which was stayed or on appeal during the justice’s assignment as the coordination judge. The committee concluded that disqualification was not mandatory because the justice did not try or hear the matter in the lower court. (Cal. Code Jud. Ethics, canon 3 3E(5)(f)(i).)

The committee also advises against discretionary disqualification because a reasonable person aware of the circumstances, including the fact that the justice did not decide a motion or contested issue of law or fact related to the merits of the appeal, would have no reason to doubt the justice’s impartiality. (Canon 3E(4)(c).)

As guidance to the justice and other former coordination judges, the committee recommends justices consider whether they actively participated in the matter before them on appeal when making a disqualification decision. The committee identifies the following actions by trial judges below that would likely lead a reasonable person to doubt impartiality:

• rulings on contested issues of law or fact related to the appeal;
• a ruling referenced or implicated in the appeal;
• a ruling on the case in chief or affirmative defenses;
• a procedural ruling that had a substantial effect on the ultimate outcome; or
• any rulings about which a claim of error is raised in the arguments on appeal.
  

“Providing guidance to this justice and others who have been coordination judges is something the committee believes is important so judges may know what to consider about their disqualification obligations,” said committee member Judge Michael T. Garcia, (ret.).

About the Committee on Judicial Ethics Opinions (CJEO)
The Committee on Judicial Ethics Opinions is a 12-member advisory committee that includes appellate justices, trial court judges and commissioners. The committee is appointed and authorized by the California Supreme Court, but its work is independent of the court, the Judicial Council, and all other entities. Its opinions are advisory and do not necessarily reflect the views of the California Supreme Court or any other entity.

The committee issues formal opinions, informal opinions, and oral advice on proper judicial conduct pursuant to the California Code of Judicial Ethics and other authorities.