Monday, October 7, 2013
Ethics Committee Seeks Comment on Campaign Contribution Limits
By a MetNews Staff Writer
The California Supreme Court Committee on Judicial Ethics Opinions is asking for comment on a draft opinion that would allow judges to 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 issue involves the interpretation of Code of Civil Procedure Sec. 170.1(a)(9)(a), which mandates judicial disqualification when a “lawyer in the proceeding” has donated more than $1,500 to the judge’s campaign. The draft opinion would clarify that the statute does not apply to contributions by a firm, and does not provide for aggregation of smaller contributions by individual lawyers.
“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 section 170.1 subds.(a)(6)(A) and (a)(9)B).”
In the draft opinion, released Thursday, the court 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 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 Sec. 1701.(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.
In its other draft opinion, 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 making them orally and having them documented through a minute order, official clerk’s minutes, or a formal order.
The draft opinions and invitation to comment are posted on the committee’s website at http://www.JudicialEthicsOpinions.ca.gov/itc. The deadline for comment on either opinion is Nov. 15, and comments may be submitted at the site, or by email, or by regular mail.
The CJEO is made up of 12 members, including the chair, Third District Court of Appeal Justice Ronald Robie. The members come from the trial and appellate courts, and include a commissioner and a retired bench officer.
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