Friday, November 2, 2018
Supreme Court Committee:
Pro Tem Justice Bound by Appellate, Not Trial Court, Ethics
Superior Court Judge Who Received Less Than $5,000 From Parties to Appeal Need Not Step Aside From Case Nor Make Disclosures to Contributors’ Opponents
By a MetNews Staff Writer
A superior court judge who is assigned to sit on an appellate court is bound by ethics rules applicable to appellate justices not trial court judges, a California Supreme Court committee has advised, telling an inquiring judge that recusal from a case based on campaign contributions from parties is not mandatory, but might be considered to avoid the appearance of impropriety.
The Judicial Council yesterday released a summary of oral counseling by the Supreme Court Committee on Judicial Ethics Opinions (“CJEO”), dated Oct. 18. It relates that the judge who sought the advice, who is not identified, received donations to his or her reelection committee from parties to the appeal, as well as from a political action committee to which the parties contributed.
The total contributions from parties, the summary notes, were under $5,000, pointing out that if they were not less than that amount, recusal would be mandatory under a provision in Canon 3 of the Code of Judicial Ethics. Inferentially, the contributions exceeded $1,500, receipt of which would trigger mandatory recusal for a Superior Court judge under Code of Civil Procedure §170.
Donation From PAC
A gift of $7,000 came from a super PAC. CJEO instructed:
“Because this third party contribution was not made by ‘a party or lawyer’ in the appellate matter, the canon 3E(5)(j) limit requiring appellate disqualification does not apply.”
Aside from there being no mandatory duty of self-recusal, the summary says, there is no mandatory duty to disclose the contributions to the contributors’ adversaries in the appeal, explaining:
“Because appellate justices have no duty to disclose, the requesting trial court judge would be under no obligation to disclose any of these contributions, which he would have been required to disclose in a trial court proceeding as information reasonably relevant to the question of disqualification.”
The opinion goes on to say:
“Discretionary grounds for disqualification applicable to appellate court justices are set forth in canon 3E(4). which requires appellate justices to disqualify themselves when they believe recusal would further the interests of justice or when the circumstances are such that a reasonable person aware of the facts might doubt impartiality….”
“In this case, the judge will not have a duty as an appellate justice pro tempore to disclose the non-disqualifying party campaign contributions, but those contributions would still be publically [sic] available in the judge’s [Fair Political Practices Commission] filings. The judge’s discretionary decision about disqualification must take into consideration whether a reasonable person aware of those public records and the campaign contributions from parties to the action, or any other circumstances related to the judge’s campaign or memberships, would doubt impartiality.”
Membership in Organization
The judge also queried as to the significance of shared membership with some of the parties in a organization “devoted to the law, the legal system, and the administration of justice.” The summary sets forth that “disclosure would be required in a trial court proceeding because the organization is primarily made up of parties to the appellate matter, which is reasonably relevant to the question of disqualification,” but adds:
“In the appellate court proceeding the judge has been invited to hear on assignment, however, the judge would have no duty to disclose the circumstances of the membership.”
The committee, chaired by Third District Court of Appeal Justice Ronald B. Robie, is comprised of 12 current or former judicial officers, including one from Los Angeles: Superior Court Judge Samantha P. Jessner.
Copyright 2018, Metropolitan News Company