Friday, April 15, 2005
Bill Limiting Disqualification of Judges Over Contacts With ADR Providers Advances in State Assembly
By a MetNews Staff Writer
Legislation that would limit the circumstances under which a judge”s discussions with an alternate dispute resolution provider require disqualification appears well on its way to passing the state Assembly, a lobbyist for the California Judges Association said yesterday.
AB 1322 by Assemblywoman Noreen Evans, D-Santa Rosa, has drawn no visible opposition after gaining the support of the plaintiff and defense bars, judges, and the ADR community, Michael Belote told the MetNews.
The bill, whose original concept remains intact after approval of Assembly floor amendments Tuesday, would add 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 ‘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 discussed possible employment upon retirement with an ADR provider.
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,” Armstrong explained.
‘Specifically, on January 8, 2004, when the parties requested referral to mediation, the litigation became one in which there was an issue relating to ‘the appointment or use of a dispute resolution neutral.’....That, coupled with the judge”s admitted discussions with alternative dispute resolution providers regarding prospective employment, operated to disqualify him from further acting in the case.”
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.
Belote said lawmakers appear to agree with CJA that the original legislation was only intended to require disqualification following “meaningful negotiations about potential employment.” Under the Court of Appeal’s interpretation, he said, a judge who runs into an ADR provider at a social function, is asked whether he or she has any interest in private judging, and who replies that he or she absolutely does not would be disqualified from hearing any ADR-related matters.
If the bill does pass the Assembly, it will go to the state Senate, where Belote said he is not aware of any opposition.
Copyright 2005, Metropolitan News Company