Metropolitan News-Enterprise


Friday, April 22, 2022


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C.A. Opinion Tells of Tactic Prompting Recusal of All Judges of Small Court

Associating In Retired Member of Bench, Disgraced Ex-Judge Steven G. Bailey, Results in Former Colleagues in El Dorado County Disqualifying Themselves


By a MetNews Staff Writer


A decision of the Third District Court of Appeal spotlights a ploy used in the El Dorado Superior Court after receiving an adverse tentative ruling: associating with a former judge of that court, causing its current members to recuse themselves.

The opinion—which affirms an order disqualifying ex-Judge Steven G. Bailey as an attorney for the defendants in a real property case based on his having presided over motions in prior cases relating to the property—tells of Bailey coming into the case the day before a hearing on two key motions where the tentative ruling was in favor of the plaintiff.

Bailey, who has been barred from judicial service by the state disciplinary body, directed a letter to the judge presiding in the case, Dylan Mary Sullivan, announcing his representation of defendants Patricia G. Olson and Jimmy Dastur.

He queried if the hearing would go forward, mentioning that in each instance where he had appeared in the El Dorado Superior Court since leaving it, all members of that bench had recused themselves and a judge from another county had been assigned.

Sullivan responded by recusing herself that day. Other members of the six-judge court soon did the same, and Chief Justice Tani Cantil-Sakauye assigned Sacramento Superior Court Judge Gerrit W. Wood to take over. Plaintiff Robert J. Hassett’s motion to disqualify Bailey was granted and Olson and Dastur appealed, arguing that the plaintiff’s motion should have been spurned as one made for tactical purposes.

In an unpublished opinion filed Wednesday, Presiding Justice Vance W. Raye said there’s nothing in the record to support that allegation, adding:

“Rather, the circumstances here are the other way around….In the letter to the judge on the eve of the hearing on these motions, Bailey advised that his association in cases in El Dorado County Superior Court led to recusal of the full bench in every instance, which prompted the judge to recuse herself that day. We agree with Hassett that Bailey’s association and recusal request the night before the hearings ‘were actions taken by the retired judge in this case intending to disrupt the proceedings in which tentative rulings had issued in favor of Hassett….”

Raye said the disqualification was proper in light of rule 1.12(a) of the Rules of Professional Conduct which provides that “a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge...unless all parties to the proceeding give informed written consent.”

The defendants argued that Hassett lacked standing to move for the disqualification because he had not been a party to the two cases in which Bailey had acted on motions. Raye responded:

“Defendants, however, cite no authority that a motion to disqualify a former judge may be brought only by a party to a proceeding over which the judge presided….

“The trial court correctly determined that Bailey’s representation of defendants in violation of rule 1.12 would impact Hassett’s interest in a fair adjudication of his claims….”

The presiding justice said the defendants “do not dispute—nor could they—that the present action involves” two of the “same parties…and same basic facts” as the two cases in which Bailey had made rulings.

Confidential Information

Raye went on to say:

“Defendants nonetheless insist that disqualification turns on whether the former judge received confidential information from a party to litigation over which the judge had presided. However, the commentary to rule 1.12 contains another disjunctive phrase to the contrary, i.e., that a former judge is not prohibited from representing a party in a matter where the judge ‘did not participate, or acquire confidential information.’… Thus, participation or acquisition of confidential information in a former action that overlaps with the present one can serve as a basis for disqualifying a former judge.

“We conclude the trial court did not err in disqualifying Bailey due to his personal and substantial participation as a judge in a matter within the meaning of rule 1.12 of the Rules of Professional Conduct.”

The case is Hassett v. Olson, C092212.

CJP Discipline

Bailey, who lost in the November 2018 run-off for state attorney general to then-incumbent Xavier Becerra (now secretary of the U.S. Department of Health and Human Services), on Feb. 27 2019 was subjected to the sternest discipline the Commission on Judicial Performance can impose on a former judge: a censure and a lifetime bar from judicial office. His ethical breaches were numerous, some in connection with his campaign for attorney general before resigning from his judicial office.

 The commission commented:

“As the masters noted. Judge Bailey has his own views on appropriate conduct for a judge, and his views are misinformed and erroneous. Based on the breadth and nature of Judge Bailey’s misconduct over the entire course of his judicial career, his prior discipline, and his failure to appreciate the impropriety of much of his misconduct, we conclude there is a strong likelihood that Judge Bailey would engage in subsequent misconduct if he were to serve in a judicial capacity in the future. In order to protect the public and maintain public confidence in the integrity and impartiality of the judiciary, the commission has determined to censure and bar former Judge Steven C. Bailey from seeking or holding judicial office, or accepting a position or an assignment as a judicial officer, subordinate judicial officer or judge pro tem with any court in the State of California, or accepting reference of work from any California state court, at any time in the future.”

Bailey’s law office is located in Placerville, in El Dorado County. That county is situated east of Sacramento, bordering on the state of Nevada.


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