Thursday, December 4, 2014
C.A. Faults Disqualified Judge for Signing Order
By a MetNews Staff Writer
The Court of Appeal for this district yesterday called into question the propriety of Santa Barbara Superior Court Judge Thomas P. Anderle signing an order in a probate case, on behalf of another judge, after he was disqualified.
Div. Six, in an unpublished opinion by Justice Steven Perren, reversed the order, not because of the irregularity of Anderle having signed it, but because the jurist had denied a request for an evidentiary hearing. The hearing was sought by objectors to a petition for instructions filed by the trustee of a decedent’s trust.
“Once appellant objected to adjudication of the petition based on documentary evidence, an evidentiary hearing was required under Probate Code section 1022,” Perren said.
The appellant was the child of the decedent, by a previous marriage.
The case was initially assigned for all purposes to Judge Colleen K. Sterne but her unavailability on the day of a scheduled hearing caused the matter to be shunted to the courtroom where Anderle sits. The judge continued the case to another date, to be heard by him.
On the day before the hearing, he issued a tentative ruling adverse to the appellant and his siblings.
At the hearing, their lawyer announced that he was going to file a disqualification motion, under Code of Civil Procedure §170.1 (for cause), based on Anderle’s legal representation of the decedent in 1986 in connection with his former wife’s child support motion.
(Sec. 170.1(a)(2)(B)(i) only requires recusal based on a judge’s prior representation of a party within the past two years. Anderle, 79, has been in the bench since 1997.)
In light of the impending filing of a statement of disqualification, the judge continued the matter to Nov. 29, 2012. The statement was filed, along with a peremptory challenge under Code of Civil Procedure §170.6.
Anderle acquiesced as to the latter motion, and the case was shifted back to Sterne.
The objectors’ lawyer did not appear on Nov. 29, thinking that the removal of Anderle from the case had caused the matter to go off calendar, to be re-set after a new judge was assigned. Sterne, who was sitting in Anderle’s courtroom that day, announced that she had read Anderle’s tentative decision, agreed with it, and adopted it as her own.
On Dec. 5, the attorney for the objectors filed a peremptory challenge (which the presiding judge struck, given that each side has only one such challenge) and a statement of disqualification. Despite the pendency of the challenge for cause, Anderle on Dec. 13, signed, on Sterne’s behalf, a final order granting the petition for instructions, containing the very language of his tentative ruling.
Judge Donna D. Geck (to whom the case was assigned after Sterne failed to respond to the statement) denied a motion to vacate the order, made pursuant to Code of Civil Procedure § 473(b).
Although it is Stern’s Dec. 13, 2012 order, not Geck’s ruling, that is reversed by the Court of Appeal, Geck is listed in the opinion as the trial judge.
Perren noted that the filing of the peremptory challenge to her, based in part on her failure to provide the evidentiary hearing that had been requested, “was brought to Judge Sterne’s attention before the order was signed.” He added:
“Moreover, the order was signed, not by Judge Sterne, but by Judge Anderle—the judge to whom the request for an evidentiary hearing was directed. There is no question he was aware of the request when he signed the order.”
Geck rebuffed the contention that the order was void because it was signed by Anderle after he was disqualified. She found that this was a ministerial act, given that Sterne had adjudicated the matter.
“Even assuming this was within the letter of the law,” Perren wrote, “allowing a disqualified judge to ‘facilitate entry’ of an order he originally drafted in a contested matter might not be within its spirit. In the absence of an exigency, it would have been prudent for another judge to sign the order.”
“In addition, Judge Sterne’s authority to issue the final order is not certain. Section 170.4, subdivision (c)(1), states that once a judge is disqualified for cause under section 170.1, ‘all orders and rulings of the judge...made after the filing of the statement shall be vacated.” Objectors filed their statement before entry of the order. While we do not condone their apparent strategy of challenging an adverse ruling through disqualification of the judge, rather than through an appropriate objection or motion, trial judges have discretion to strike defective or specious challenges….Judge Sterne’s decision to acquiesce to her disqualification for cause appears, at a minimum, to raise a question regarding the order’s validity….
“Since we conclude the order granting the petition must be reversed for failure to provide an evidentiary hearing, we need not decide whether the judicial disqualifications impacted its validity.”
The case is Bowman v. Westwick, 2 Civ. No. B248295.
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