Metropolitan News-Enterprise


Thursday, December 12, 2013


Page 3


Ethics Committee Explains Impact of Campaign Contributions on Recusal


By a MetNews Staff Writer


Judges may hear cases involving lawyers whose firms have donated to their campaigns, as long as no individual lawyer involved in the case has crossed the statutory donation threshold of $1,500, the Supreme Court Committee on Judicial Ethics Opinions said yesterday.

In a formal opinion that is substantively unchanged from the draft opinion sent out for public comment in October, the panel said that the $1,500 threshold does not apply to donations from a law firm.

Nor may donations from attorneys in the same firm be aggregated in determining whether the threshold has been crossed, the panel said, with a caveat:

 “In either circumstance, however, the judge must consider whether those aggregated or law firm contributions might nevertheless cause a reasonable person to doubt the judge’s impartiality for purposes of discretionary disqualification, pursuant to [Code of Civil Procedure] section 170.1 subds.(a)(6)(A) and (a)(9)B).”

The code’s § 170.1(a)(9)(a) mandates judicial disqualification when a “lawyer in the proceeding” has donated more than $1,500 to the judge’s campaign.

The committee yesterday cited the legislative history, which cites two sources for the legislation: Caperton v. A.T. Massey Coal Co., Inc. (2009) 556 U.S. 868, and the final report of the California Judicial Council’s Commission for Impartial Courts.

The court in Caperton ruled that due process was violated by a West Virginia high court justice’s refusal to recuse himself from a case involving a $50 million damage award against a coal company, whose chairman had spent $3 million in support of the justice’s election campaign. The justice in that case cast the deciding vote overturning the award, and the U.S. Supreme Court held that, under the “extreme facts” of the case, “the probability of actual bias rises to an unconstitutional level.”

The ethics committee noted, however, that the high court invited individual states to adopt their own rules to vindicate the public interest, “of the highest order,” in “judicial integrity.”

The Commission for Impartial Courts, chaired by Supreme Court Justice Ming Chin, subsequently recommended the changes that became § 170.1(a)(9).

While the legislation applies only to trial courts, new judicial ethics rules extended mandatory disqualification to cases in which contributions to a Court of Appeal justice exceed $1,500 or to a Supreme Court justice exceed $20,000.

Giving the term “lawyer in the proceeding” its plain meaning, and applying it only when a lawyer actually involved in the case has exceeded the donation threshold, is consistent with the intent of the legislation, the committee said.

The committee emphasized, however, that there is still a duty to consider discretionary recusal when disqualification is not mandated by the amount of an individual donation.

“Indeed, the objective standard in section 170.1, subdivision (a)(6)(iii) is an explicit ground for disqualification and is intended to ensure public confidence in the judiciary by requiring disqualification if a person aware of the facts would reasonably entertain doubts concerning a judge's impartiality,” the committee explained. “…The facts a person would need to be aware of under the objective standard are known both to the judge and the public….The committee therefore concludes that mandatory disqualification for individual attorney contributions over the $1,500 threshold, together with discretionary disqualification for aggregated and law firm contributions, sufficiently ensures the public trust in an impartial and honorable judiciary.”

In another opinion, also consistent with an October draft, the committee concluded that when a judge is required to make ethical disclosures “on the record” pursuant to canon 3E(2)(a) of the Code of Judicial Ethics, and there is no court reporter or electronic recording of the proceedings, the judge “must ensure that any disclosures become a part of the written record of proceedings,” by having them documented through a minute order, official clerk’s minutes, or a formal order.

The disclosures must also be made to counsel, orally or by service of the written order, the court said.

The CJEO is made up of 12 members, including the chair, Third District Court of Appeal Justice Ronald Robie, and the vice-chair, Fourth District Court of Appeal Justice Douglas Miller. Los Angeles Superior Court judges Joanne O’Donnell and John S. Wiley Jr. are among the members.


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