Metropolitan News-Enterprise


Monday, September 26, 2005


Page 1


Schwarzenegger Signs Bill Limiting Disqualification Of Judges for Contacts With ADR Providers


By a MetNews Staff Writer


Contacts between a judge and an alternative dispute resolution provider no longer mandate disqualification of the judge from ADR-related matters as a result of urgency legislation signed by Gov. Arnold Schwarzenegger.

The governor Thursday signed AB 1322 by Assemblywoman Noreen Evans, D-Santa Rosa, into law, making it effective immediately. The bill, a priority of the California Judges Association, drew no opposition after gaining the support of the plaintiff and defense bars, judges, and alternative dispute resolution providers.

The bill adds clarifying language to Code of Civil Procedure Sec. 170.1(a)(8).

The statute requires disqualification, unless waived by the parties, if within the last two years a judge has “participated in...discussions regarding...prospective employment or service” as a dispute resolution neutral and the matter before him or her “includes issues relating to the enforcement of an agreement to submit a dispute to alternative dispute resolution or the appointment or use of a dispute resolution neutral.”

AB 1322 would provide that disqualification is not required unless the judge “solicited or otherwise indicated an interest in accepting or negotiating” possible employment with the ADR provider “or responded to an unsolicited statement regarding, or an offer of, such employment or service by expressing an interest in that employment or service or encouraging the person making the statement or offer to provide additional information about that possible employment or service.”

The bill would also provide that where such discussions have taken place, the judge is only disqualified from referring matters to, or reviewing matters involving, that provider, not from hearing all ADR-related matters.

The bill would explicitly reject the interpretation of the statute by Div. Five of this district’s Court of Appeal in Hartford Casualty Insurance Company v. Superior Court (2004) 125 Cal.App.4th 250. The state Supreme Court recently granted review of that decision on its own motion.

In Hartford Casualty, Judge Jon Mayeda recused himself upon concluding that disqualification was mandated because he had talked to an ADR provider about the possibility of retiring to become a private judge.

Since the contact occurred before the ruling on a summary adjudication motion, the Court of Appeal panel said, it was improper for Los Angeles Superior Court Judge Aurelio N. Munoz—who took the case over from Mayeda—to allow Mayeda’s ruling on it to stand.

Mayeda “overlooked the fact that the same disqualifying factors existed before he was asked to appoint a referee, and so he should have recused himself even earlier in the litigation,” Justice Orville Armstrong explained.

Armstrong said Mayeda “indicated he did not initiate the contacts and that it is very common for alternative dispute resolution providers to approach members of the judiciary regarding employment upon their retirement from the bench.” But even if the discussions were “superficial,” Armstrong said, disqualification was still required by the statute.

In seeking the revision, CJA argued that the original legislation was only intended to require disqualification following “meaningful negotiations about potential employment.”


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