The Supreme Court Committee on Judicial Ethics Opinions (CJEO) today posted a summary of oral advice stating appellate justices should disqualify themselves from a case if they were removed by peremptory challenge while hearing the case as a trial judge.
In a summary of the advice posted on the CJEO website, the committee concludes that the ethics rule requiring disqualification when a reasonable person would doubt the justice's ability to be impartial applies. (Cal. Code of Judicial Ethics, canon 3E(4)(c).)
Peremptory challenges do not apply to appellate justices, but the Code of Judicial Ethics requires justices to consider the appearance of impartiality in each case. A peremptory challenge allows a party to disqualify a trial judge without proof of bias, and the right is liberally construed in favor of the party who asserts it.
Said committee member Justice Judith L. Haller, of the Fourth District Court of Appeal:
"Considering the strong public policies underlying the right to exercise a peremptory challenge, it is unlikely that a reasonable person would think it fair that a judge who had been challenged as a trial judge could act in a reviewing capacity at the appellate court level, regarding the same case."
About the Committee on Judicial Ethics Opinions
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. (Cal. Rules of Court, rule 9.80(b); Cal. Com. Jud. Ethics Opns., rule 1(a).)
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. (Cal. Rules of Court, rule 9.80(e)(1); Cal. Com. Jud. Ethics Opns., rule 1(a)-(b).)
Read frequently asked questions about the committee here.