Wednesday, December 19, 2018
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Court of Appeal:
Judge Not Disqualified for Violating Donation Disclosure Rule
By a MetNews Staff Writer
The Court of Appeal for this district has held that Ventura Superior Court Judge Henry J. Walsh, who drew a Commission on Judicial Performance admonishment for failing to disclose attorney donations in his 2012 reelection campaign, was not disqualified from hearing a case defended by some of those same supporters because none of them individually gave more than $1,500.
Walsh was publicly admonished in 2016 for failing to disclose on the record that attorneys appearing before him after his 2012 reelection had contributed to his campaign. Under Code of Civil Procedure §170.1(a)(9)(C), judges must disclose attorney or party campaign donations of $100 or more in matters where the contributors appear before him or her.
Sec. 70.1(a)(9)(A) provides that contributions greater than $1,500 from a party or lawyer to the judge in matter, given in support of an upcoming election or one within the last six years, disqualify the judge from hearing the matter.
Gilbert’s Opinion
Presiding Justice Arthur Gilbert of Div. Six wrote the opinion, which was filed Monday and certified for partial publication. The portion of the opinion dealing with Walsh’s non-disqualification is unpublished.
The published portion of the opinion affirms Walsh’s judgment, holding that a homeowners association—which countenanced the defendants’ growing of grapes, over the protest of the plaintiff homeowners—was entitled to judicial deference in the interpretation of its covenants, conditions and restrictions (“CC&Rs”).
“Because the wine was made, bottled, and sold commercially offsite, and the activity at the vineyard did not affect the residential character of the community,” Gilbert said, “we conclude there was no business or commercial activity within the meaning of the CC&Rs.”
Proceedings After Trial
Walsh’s admonishment came on Feb. 10, 2016, the same day that he signed the judgment in the case. A plaintiff on March 2 filed a motion to disqualify Walsh for cause, pursuant to Code of Civil Procedure §170.1, and like statements of disqualification from other plaintiffs followed.
The trial judge on March 11 recused himself without conceding prejudice on his part. The plaintiffs asked for a new trial; retired Orange Superior Court Judge John N.T. Nguyen denied the motion, stating:
“When the facts are viewed as a whole they show that no person aware of them might reasonably entertain a doubt that Judge Walsh would be able to be impartial.”
Recusal Not Mandatory
Gilbert wrote:
“The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) issued an opinion on mandatory disqualification based on a contribution of more than $1,500….CJEO concluded, and we agree, that the $1,500 disqualification threshhold ‘applies to the individual lawyer appearing in the matter.’ ”
He added:
“In their opening briefs, plaintiffs list the contributions of all of the lawyers who allegedly represented defendants during the five years of litigation. No lawyer contributed more than $1,500 to Judge Walsh’s campaign. Thus, the mandatory disqualification provision is inapplicable….
“Plaintiffs have failed to show that Judge Walsh was disqualified because ‘[a] person aware of the facts might reasonably entertain a doubt that [he] would be able to be impartial.’…Thus, we reject plaintiffs’ claim that Judge Nguyen abused his discretion in denying their motion for a new trial.”
Yegan Dissents
Justice Kenneth Yegan dissented, maintaining that the defendants, Jeffrey and Marcella Ketelhut, were, in fact, in violation of the homeowners association’s CC&Rs. He wrote:
“I know unfairness when I see it. The judgment should be reversed because plaintiffs are entitled to a ruling from the trial court that the Ketelhuts were conducting a business in violation of the Covenants, Conditions, and Restrictions running with the land….It does not matter whether the Ketelhuts could win an award for having the most beautiful vineyard in the world. It does not matter whether the wine from the grapes rivals the finest wines of the Napa Viticulture….[T]he facts unerringly point to the conclusion that the Ketelhuts were conducting a vineyard business on their property….”
He said that some commercial activity may be minor and inoffensive, but declared that the defendants’ “operation of their commercial vineyard was neither de minimis nor concealed.”
Yegan decried the affirmance of a $250,506.50 award of attorney fees to the defendants, asserting:
“[T]o monetarily punish plaintiffs with attorneys’ fees is not only unfair, it is unconscionable. The Ketelhuts were the ‘first movers.’ They created the entire problem by operating a commercial vineyard and publicizing it in the local newspaper.
“They are at fault and they should pay for it.”
Justice Steven Z. Perren said in a concurring opinion:
“In a vain effort to “define what may be indefinable,” Justice Potter Stewart opined, “I know it when I see it.” In like manner, the dissent “knows unfairness when [it] sees it”—when it sees how the Ketelhuts harvest their grapes and make and sell their wine. The majority sees it otherwise. In my opinion this is not a matter for such subjectivity. Rather, we should defer to the good faith exercise of discretion and ‘the board’s authority and presumed expertise.’ ”
The case is Eith v. Ketelhut, 2018 S.O.S. 6033.
Copyright 2018, Metropolitan News Company