Wednesday, March 5, 2014
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Jurist Who Performed Lawyer’s Wedding Not Disqualified—C.A.
But Panel Says Attending Reception or Related Event May Be Cause for Recusal
By KENNETH OFGANG, Staff Writer
A San Diego Superior Court commissioner who presided over a lawyer’s wedding was not required to disqualify herself from hearing a case involving the attorney, the Fourth District Court of Appeal ruled yesterday.
The “average person on the street” would not assume that a judicial officer is biased merely because she acted as an officiant, Justice Judith Haller wrote for Div. One. But taking a more active role, such as by attending the reception, might indicate the type of social relationship that would give rise to a reasonable doubt as to the judge’s impartiality, the justice said.
The ruling came as a result of postjudgment proceedings between Kenneth Wechsler and his former wife, Kimberly Wechsler. The ex-wife’s then-attorney, Alexandra O’Neill, informed the ex-husband’s attorney, Cary Cotton, in late October of last year that the commissioner hearing the case, Patti Ratekin, would be officiating at O’Neill’s wedding in December.
Motion to Disqualify
Less than a week after the disclosure, Cotton brought a motion to disqualify Ratekin for cause. Ratekin responded with a declaration explaining that she did not have a social relationship with O’Neill, but that during an appearance about a month earlier, the attorney asked her to perform the ceremony. Ratekin said she agreed to perform the ceremony but had no plan to attend the reception.
O’Neill said in her own response:
“Because Commissioner Ratekin is only appearing at the ceremony, and leaving immediately thereafter, I will not have a chance to speak with her at the ceremony and the expectation is only that she will be supervising the recitation of the vows, exchange of wedding rings and signing the marriage license.”
Judge Jeffrey Barton, who heard the challenge under Code of Civil Procedure §170.3(b), said the facts as set forth in the declarations would not cause a reasonable person to doubt Ratekin’s objectivity, and rejected the challenge.
The ex-husband sought writ review. Although the ex-wife later changed attorneys, the Court of Appeal said the petition raised an important issue that was likely to recur and declined to dismiss the petition as moot.
Case Cited
Haller said the trial judge was correct, citing People v. Carter (2005) 36 Cal.4th 1215. The court held in that case that the judge who officiated at the wedding of the prosecutor’s daughter several months earlier was not disqualified from hearing a murder case.
The facts of that case, Haller explained, indicated that the relationship between the prosecutor and the judge was “professional and casual,” rather than a close social relationship; that the request to officiate came from the prosecutor’s daughter, not from the prosecutor; that no fee was paid or requested—the Code of Judicial Ethics allows judges to accept payment for performing weddings on weekends and holidays—and that it is customary for judges in San Bernardino County to perform weddings for lawyers and their families.
It is not unusual for judges to perform wedding ceremonies purely as an official function, signifying no bias in favor of the persons being married or their family members, the justice said, and requiring their disqualification for having done so would have negative consequences.
She wrote:
“These observations are consistent with the public policy of encouraging judges to provide this public service for couples who prefer a secular wedding ceremony. A holding that the agreement to officiate at an attorney’s wedding automatically disqualifies a judge from presiding over a matter in which the attorney appears would preclude judges from performing this public service and/or would require assignment to a new judicial officer, thus unnecessarily interrupting and delaying case resolution.”
Close Relationship
Disqualification would be required, Haller suggested, if the judge were asked to officiate because of a close relationship with the person being married or his or her family, of if close ties were created in the process of planning the wedding, “reflected by the judicial officer participating in prewedding planning events, attending the wedding reception or other related social functions, or accepting monetary or other gifts in exchange for performing the wedding.”
In deciding whether to accept the invitation to preside, she said, a judge should consider “the extent of the judge’s involvement in the ceremony and in other related events; the nature of the parties’ past and current social/personal relationship; any ties or connections with the families of the wedding party; and the nature of the issues pending or likely to come before the court. “ And if the judge is going to officiate, he or she should disclose that within a reasonable time, she said.
The case is Wechsler v. Superior Court (Wechsler), 14 S.O.S. 1115.
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