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CANON 3 1 2

A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL 3 OFFICE IMPARTIALLY,* COMPETENTLY, AND 4

DILIGENTLY 5 6

A. Judicial Duties in General 7 8 All of the judicial duties prescribed by law* shall take precedence over all other 9 activities of every judge. In the performance of these duties, the following 10 standards apply. 11 12 B. Adjudicative Responsibilities 13 14

(1) A judge shall hear and decide all matters assigned to the judge except those 15 in which he or she is disqualified. 16

17 ADVISORY COMMITTEE COMMENTARY: Canon 3B(1) 18

Canon 3B(1) is based upon the affirmative obligation contained in Code of 19 Civil Procedure section 170. 20

21 (2) A judge shall be faithful to the law* regardless of partisan interests, public 22 clamor, or fear of criticism, and shall maintain professional competence in the 23 law.* 24

25 ADVISORY COMMITTEE COMMENTARY: Canon 3B(2) 26 Competence in the performance of judicial duties requires the legal 27 knowledge,* skill, thoroughness, and preparation reasonably necessary to 28 perform a judge’s responsibilities of judicial office. Canon 1 provides that an 29 incorrect legal ruling is not itself a violation of this code. 30 31

(3) A judge shall require* order and decorum in proceedings before the judge. 32 33

(4) A judge shall be patient, dignified, and courteous to litigants, jurors, 34 witnesses, lawyers, and others with whom the judge deals in an official 35 capacity, and shall require* similar conduct of lawyers and of all staff and 36 court personnel under the judge’s direction and control. 37

38 (5) A judge shall perform judicial duties without bias or prejudice. A judge 39 shall not, in the performance of judicial duties, engage in speech, gestures, or 40 other conduct that would reasonably be perceived as (a) bias or prejudice, 41 including but not limited to bias or prejudice based upon race, sex, gender, 42

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judicial officer,* he or she shall promptly report such information in writing to 1 both the presiding judge of the court in which the subordinate judicial officer* 2 sits and the Commission on Judicial Performance. 3

4 (4) A judge shall cooperate with judicial and lawyer disciplinary agencies. 5

6 ADVISORY COMMITTEE COMMENTARY: Canons 3D(3) and 3D(4) 7 See Government Code section 68725, which requires judges to cooperate 8 with and give reasonable assistance and information to the Commission on 9 Judicial Performance, and rule 104 of the Rules of the Commission on Judicial 10 Performance, which requires a respondent judge to cooperate with the 11 commission in all proceedings in accordance with section 68725. 12 13

(5) A judge shall not retaliate, directly or indirectly, against a person known* 14 or suspected to have assisted or cooperated with an investigation of a judge or 15 a lawyer. 16

17 E. Disqualification and Disclosure 18 19

(1) A judge shall disqualify himself or herself in any proceeding in which 20 disqualification is required by law.* 21

22 (2) In all trial court proceedings, a judge shall disclose on the record as 23 follows: 24

25 (a) Information relevant to disqualification 26 27 A judge shall disclose information that is reasonably relevant to the 28 question of disqualification under Code of Civil Procedure section 170.1, 29 even if the judge believes there is no actual basis for disqualification. 30

31 (b) Campaign contributions in trial court elections 32

33 (i) Information required to be disclosed 34

35 In any matter before a judge who is or was a candidate for judicial 36 office* in a trial court election, the judge shall disclose any 37 contribution or loan of $100 or more from a party, individual lawyer, or 38 law office or firm in that matter as required by this canon, even if the 39 amount of the contribution or loan would not require disqualification. 40 Such disclosure shall consist of the name of the contributor or lender, 41 the amount of each contribution or loan, the cumulative amount of the 42

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contributor’s contributions or lender’s loans, and the date of each 1 contribution or loan. The judge shall make reasonable efforts to obtain 2 current information regarding contributions or loans received by his or 3 her campaign and shall disclose the required information on the record. 4

5 (ii) Manner of disclosure 6

7 The judge shall ensure that the required information is conveyed on the 8 record to the parties and lawyers appearing in the matter before the 9 judge. The judge has discretion to select the manner of disclosure, but 10 the manner used shall avoid the appearance that the judge is soliciting 11 campaign contributions. 12

13 (iii) Timing of disclosure 14

15 Disclosure shall be made at the earliest reasonable opportunity after 16 receiving each contribution or loan. The duty commences no later than 17 one week after receipt of the first contribution or loan, and continues 18 for a period of two years after the candidate takes the oath of office, or 19 two years from the date of the contribution or loan, whichever event is 20 later. 21

22 ADVISORY COMMITTEE COMMENTARY: Canon 3E(2)(b) 23 Code of Civil Procedure section 170.1, subdivision (a)(9)(C) requires a 24 judge to “disclose any contribution from a party or lawyer in a matter that is 25 before the court that is required to be reported under subdivision (f) of Section 26 84211 of the Government Code, even if the amount would not require 27 disqualification under this paragraph.” This statute further provides that the 28 “manner of disclosure shall be the same as that provided in Canon 3E of the Code 29 of Judicial Ethics.” Canon 3E(2)(b) sets forth the information the judge must 30 disclose, the manner for making such disclosure, and the timing thereof. 31 “Contribution” includes monetary and in-kind contributions. See Cal. 32 Code Regs., tit. 2, § 18215, subd. (b)(3). See generally Government Code section 33 84211, subdivision (f). 34 Disclosure of campaign contributions is intended to provide parties and 35 lawyers appearing before a judge during and after a judicial campaign with easy 36 access to information about campaign contributions that may not require 37 disqualification but could be relevant to the question of disqualification of the 38 judge. The judge is responsible for ensuring that the disclosure is conveyed to the 39 parties and lawyers appearing in the matter. The canon provides that the judge 40 has discretion to select the manner of making the disclosure. The appropriate 41 manner of disclosure will depend on whether all of the parties and lawyers are 42

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present in court, whether it is more efficient or practicable given the court’s 1 calendar to make a written disclosure, and other relevant circumstances that may 2 affect the ability of the parties and lawyers to access the required information. 3 The following alternatives for disclosure are non-exclusive. If all parties are 4 present in court, the judge may conclude that the most effective and efficient 5 manner of providing disclosure is to state orally the required information on the 6 record in open court. In the alternative, again if all parties are present in court, a 7 judge may determine that it is more appropriate to state orally on the record in 8 open court that parties and lawyers may obtain the required information at an 9 easily accessible location in the courthouse, and provide an opportunity for the 10 parties and lawyers to review the available information. Another alternative, 11 particularly if all or some parties are not present in court, is that the judge may 12 disclose the campaign contribution in a written minute order or in the official 13 court minutes and notify the parties and the lawyers of the written disclosure. See 14 California Supreme Court Committee on Judicial Ethics Opinions, CJEO Formal 15 Opinion No. 2013-002, pp. 7-8. If a party appearing in a matter before the judge 16 is represented by a lawyer, it is sufficient to make the disclosure to the lawyer. 17 In addition to the disclosure obligations set forth in Canon 3E(2)(b), a 18 judge must, pursuant to Canon 3E(2)(a), disclose on the record any other 19 information that may be relevant to the question of disqualification. As examples, 20 such an obligation may arise as a result of contributions or loans of which the 21 judge is aware made by a party, lawyer, or law office or firm appearing before the 22 judge to a third party in support of the judge or in opposition to the judge’s 23 opponent; a party, lawyer, or law office or firm’s relationship to the judge or role 24 in the campaign; or the aggregate contributions or loans from lawyers in one law 25 office or firm. 26

Canon 3E(2)(b) does not eliminate the obligation of the judge to recuse 27 himself or herself where the nature of the contribution or loan, the extent of the 28 contributor’s or lender’s involvement in the judicial campaign, the relationship of 29 the contributor or lender, or other circumstance requires recusal under Code of 30 Civil Procedure section 170.1, and particularly section 170.1, subdivision 31 (a)(6)(A). 32 33

(3) A judge shall disqualify himself or herself in accordance with the 34 following: 35

36 (a) Statements that commit the judge to a particular result 37 38 A judge is disqualified if the judge, while a judge or candidate for judicial 39 office,* made a statement, other than in a court proceeding, judicial 40 decision, or opinion, that a person aware of the facts might reasonably 41 believe commits the judge to reach a particular result or rule in a particular 42 way in a proceeding. 43

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(b) Bond ownership 1 2 Ownership of a corporate bond issued by a party to a proceeding and 3 having a fair market value exceeding $1,500 is disqualifying. Ownership 4 of a government bond issued by a party to a proceeding is disqualifying 5 only if the outcome of the proceeding could substantially affect the value of 6 the judge’s bond. Ownership in a mutual or common investment fund that 7 holds bonds is not a disqualifying financial interest. 8

9 ADVISORY COMMITTEE COMMENTARY: Canon 3E(3)(b) 10

The distinction between corporate and government bonds is consistent with 11 the Political Reform Act (see Gov. Code, § 82034), which requires disclosure of 12 corporate bonds, but not government bonds. Canon 3E(3) is intended to assist 13 judges in complying with Code of Civil Procedure section 170.1, subdivision 14 (a)(3) and Canon 3E(5)(d). 15 16

(4) An appellate justice shall disqualify himself or herself in any proceeding if 17 for any reason: 18

19 (a) the justice believes his or her recusal would further the interests of 20 justice; or 21 22 (b) the justice substantially doubts his or her capacity to be impartial;* or 23 24 (c) the circumstances are such that a reasonable person aware of the facts 25 would doubt the justice’s ability to be impartial.* 26

27 (5) Disqualification of an appellate justice is also required in the following 28 instances: 29

30 (a) The appellate justice has appeared or otherwise served as a lawyer in the 31 pending* proceeding, or has appeared or served as a lawyer in any other 32 proceeding involving any of the same parties if that other proceeding 33 related to the same contested issues of fact and law as the present 34 proceeding, or has given advice to any party in the present proceeding upon 35 any issue involved in the proceeding. 36

37 ADVISORY COMMITTEE COMMENTARY: Canon 3E(5)(a) 38 Canon 3E(5)(a) is consistent with Code of Civil Procedure section 170.1, 39 subdivision (a)(2), which addresses disqualification of trial court judges based on 40 prior representation of a party in the proceeding. 41 42

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(b) Within the last two years, (i) a party to the proceeding, or an officer, 1 director or trustee thereof, either was a client of the justice when the justice 2 was engaged in the private practice of law or was a client of a lawyer with 3 whom the justice was associated in the private practice of law; or (ii) a 4 lawyer in the proceeding was associated with the justice in the private 5 practice of law. 6

7 (c) The appellate justice represented a public officer or entity and 8 personally advised or in any way represented that officer or entity 9 concerning the factual or legal issues in the present proceeding in which the 10 public officer or entity now appears. 11

12 (d) The appellate justice, his or her spouse or registered domestic partner,* 13 or a minor child residing in the household, has a financial interest or is 14 either a fiduciary* who has a financial interest in the proceeding, or is a 15 director, advisor, or other active participant in the affairs of a party. A 16 financial interest is defined as ownership of more than a 1 percent legal or 17 equitable interest in a party, or a legal or equitable interest in a party of a 18 fair market value exceeding $1,500. Ownership in a mutual or common 19 investment fund that holds securities does not itself constitute a financial 20 interest; holding office in an educational, religious, charitable, service,* or 21 civic organization does not confer a financial interest in the organization’s 22 securities; and a proprietary interest of a policyholder in a mutual insurance 23 company or mutual savings association or similar interest is not a financial 24 interest unless the outcome of the proceeding could substantially affect the 25 value of the interest. A justice shall make reasonable efforts to keep 26 informed about his or her personal and fiduciary* interests and those of his 27 or her spouse or registered domestic partner* and of minor children living 28 in the household. 29

30 (e)(i) The justice or his or her spouse or registered domestic partner,* or a 31

person within the third degree of relationship* to either of them, or the 32 spouse or registered domestic partner* thereof, is a party or an officer, 33 director, or trustee of a party to the proceeding, or 34

35 (ii) a lawyer or spouse or registered domestic partner* of a lawyer in the 36 proceeding is the spouse, registered domestic partner,* former spouse, 37 former registered domestic partner,* child, sibling, or parent of the 38 justice or of the justice’s spouse or registered domestic partner,* or such 39 a person is associated in the private practice of law with a lawyer in the 40 proceeding. 41

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(f) The justice 1 2

(i) served as the judge before whom the proceeding was tried or 3 heard in the lower court, 4 5

(ii) has personal knowledge* of disputed evidentiary facts 6 concerning the proceeding, or 7 8

(iii) has a personal bias or prejudice concerning a party or a party’s 9 lawyer. 10

11 (g) A temporary or permanent physical impairment renders the justice 12 unable properly to perceive the evidence or conduct the proceedings. 13

14 (h) The justice has a current arrangement concerning prospective 15 employment or other compensated service as a dispute resolution neutral or 16 is participating in, or, within the last two years has participated in, 17 discussions regarding prospective employment or service as a dispute 18 resolution neutral, or has been engaged in such employment or service, and 19 any of the following applies: 20 21

(i) The arrangement is, or the prior employment or discussion was, 22 with a party to the proceeding; 23

24 (ii) The matter before the justice includes issues relating to the 25 enforcement of either an agreement to submit a dispute to an 26 alternative dispute resolution process or an award or other final 27 decision by a dispute resolution neutral; 28

29 (iii) The justice directs the parties to participate in an alternative 30 dispute resolution process in which the dispute resolution neutral will 31 be an individual or entity with whom the justice has the arrangement, 32 has previously been employed or served, or is discussing or has 33 discussed the employment or service; or 34

35 (iv) The justice will select a dispute resolution neutral or entity to 36 conduct an alternative dispute resolution process in the matter before 37 the justice, and among those available for selection is an individual or 38 entity with whom the justice has the arrangement, with whom the 39 justice has previously been employed or served, or with whom the 40 justice is discussing or has discussed the employment or service. 41

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For purposes of Canon 3E(5)(h), “participating in discussions” or “has 1 participated in discussions” means that the justice (i) solicited or otherwise 2 indicated an interest in accepting or negotiating possible employment or 3 service as an alternative dispute resolution neutral, or (ii) responded to an 4 unsolicited statement regarding, or an offer of, such employment or service 5 by expressing an interest in that employment or service, making any inquiry 6 regarding the employment or service, or encouraging the person making the 7 statement or offer to provide additional information about that possible 8 employment or service. If a justice’s response to an unsolicited statement 9 regarding a question about, or offer of, prospective employment or other 10 compensated service as a dispute resolution neutral is limited to responding 11 negatively, declining the offer, or declining to discuss such employment or 12 service, that response does not constitute participating in discussions. 13

14 For purposes of Canon 3E(5)(h), “party” includes the parent, subsidiary, or 15 other legal affiliate of any entity that is a party and is involved in the 16 transaction, contract, or facts that gave rise to the issues subject to the 17 proceeding. 18 19 For purposes of Canon 3E(5)(h), “dispute resolution neutral” means an 20 arbitrator, a mediator, a temporary judge* appointed under article VI, 21 section 21 of the California Constitution, a referee appointed under Code of 22 Civil Procedure section 638 or 639, a special master, a neutral evaluator, a 23 settlement officer, or a settlement facilitator. 24 25 (i) The justice’s spouse or registered domestic partner* a person within the 26 third degree of relationship* to the justice or his or her spouse or registered 27 domestic partner,* or the person’s spouse or registered domestic partner,* 28 was a witness in the proceeding. 29 30 (j) The justice has received a campaign contribution of $5,000 or more 31 from a party or lawyer in a matter that is before the court, and either of the 32 following applies: 33

34 (i) The contribution was received in support of the justice’s last 35 election, if the last election was within the last six years; or 36

37 (ii) The contribution was received in anticipation of an upcoming 38 election. 39

40 Notwithstanding Canon 3E(5)(j), a justice shall disqualify himself or herself 41 based on a contribution of a lesser amount if required by Canon 3E(4). 42

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The disqualification required under Canon 3E(5)(j) may be waived if all parties 1 that did not make the contribution agree to waive the disqualification. 2

3 ADVISORY COMMITTEE COMMENTARY: Canon 3E 4

Canon 3E(1) sets forth the general duty to disqualify applicable to a judge 5 of any court. Sources for determining when recusal or disqualification is 6 appropriate may include the applicable provisions of the Code of Civil Procedure, 7 other provisions of the Code of Judicial Ethics, the Code of Conduct for United 8 States Judges, the American Bar Association’s Model Code of Judicial Conduct, 9 and related case law. 10

The decision whether to disclose information under Canon 3E(2) is a 11 decision based on the facts of the case before the judge. A judge is required to 12 disclose only information that is related to the grounds for disqualification set 13 forth in Code of Civil Procedure section 170.1. 14

Canon 3E(4) sets forth the general standards for recusal of an appellate 15 justice. The term “appellate justice” includes justices of both the Courts of 16 Appeal and the Supreme Court. Generally, the provisions concerning 17 disqualification of an appellate justice are intended to assist justices in 18 determining whether recusal is appropriate and to inform the public why recusal 19 may occur. 20

The rule of necessity may override the rule of disqualification. For 21 example, a judge might be required to participate in judicial review of a judicial 22 salary statute, or might be the only judge available in a matter requiring judicial 23 action, such as a hearing on probable cause or a temporary restraining order. In 24 the latter case, the judge must promptly disclose on the record the basis for 25 possible disqualification and use reasonable efforts to transfer the matter to 26 another judge as soon as practicable. 27

In some instances, membership in certain organizations may have the 28 potential to give an appearance of partiality, although membership in the 29 organization generally may not be barred by Canon 2C, Canon 4, or any other 30 specific canon. A judge holding membership in an organization should disqualify 31 himself or herself whenever doing so would be appropriate in accordance with 32 Canon 3E(1), 3E(4), or 3E(5) or statutory requirements. In addition, in some 33 circumstances, the parties or their lawyers may consider a judge’s membership in 34 an organization relevant to the question of disqualification, even if the judge 35 believes there is no actual basis for disqualification. In accordance with this 36 canon, a judge should disclose to the parties his or her membership in an 37 organization, in any proceeding in which that information is reasonably relevant 38 to the question of disqualification under Code of Civil Procedure section 170.1, 39 even if the judge concludes there is no actual basis for disqualification. 40 41 Cal

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May 2011

Speaking up about judicial misconduct

By Janice M. Brickley

Highly publicized corruption scandals involving government officials

provide fertile ground for Monday morning pundits. They can also be a

catalyst for education and positive change. Such is the case with the “kids

for cash” judicial corruption scandal in Luzerne County, Pennsylvania. In

an article published in the March Bar Journal, I discussed the

Pennsylvania Judicial Conduct Board’s failure to follow through with a

complaint concerning the judges involved in the scandal and what the California

Commission on Judicial Performance has done to ensure that its rules and procedures

are not susceptible to the failures that occurred in Pennsylvania. This article examines

the role of an attorney in exposing judicial corruption and abuse in the context of the

“kids for cash” scandal.

Two former judges, Mark A. Ciavarella Jr. and Michael T. Conahan, were charged with

federal crimes based on their participation in a scheme to close down a county juvenile

detention facility and contract for the placement of juveniles with for-profit facilities in

exchange for a secret “finder’s fee” of $997,600. Juveniles were sent to the private

detention facilities by Ciavarella at the same time both judges were accepting payoffs

from the owner of the facilities. Conahan pleaded guilty to one count of racketeering

and in February, Ciavarella was convicted by jury of 12 felony counts, including

racketeering, conspiracy and money laundering conspiracy. Both men are awaiting

sentence.

The Report of the Pennsylvania Interbranch Commission on Juvenile Justice, issued last

May, examines the circumstances that led to the “kids for cash” scandal, including the

role of attorneys who appeared regularly before Judge Ciavarella in juvenile court.

While these attorneys were not privy to Ciavarella’s financial “arrangement” with the

owners of the detention facilities, they did know that Ciavarella had a “zero-tolerance”

policy that resulted in juveniles being sent to detention facilities in unprecedented

numbers. Under Ciavarella’s zero-tolerance policy, juveniles were automatically sent to

out-of-home placement for certain offenses, such as fighting in school, without an

individual evaluation of the circumstances of the offense or the offender – contrary to a

judge’s obligation to decide sentences on a case-by-case basis.

Attorneys who regularly appeared in Ciavarella’s courtroom also knew that he routinely

adjudicated and sentenced juveniles who were unrepresented by counsel without

obtaining the required waiver of the right to counsel. In 2003, the statewide percentage

of juveniles who waived the right to counsel was 7.9 percent; in Ciaverella’s courtroom

the “attorney waiver” rate was 50.2 percent. Similar gaps appear in the statistics

throughout Ciavarella’s five-year reign in juvenile court.

A criminal prosecutor is not only an advocate but, as a representative of the sovereign,

has a duty to seek justice, which includes the responsibility of seeing that the defendant

is accorded procedural justice. (Berger v. United States (1935) 295 U.S. 78, 88 [79

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L.Ed. 1314, 1321, 55 S. Ct. 629]; County of Santa Clara v. Superior Court (2010) 50

Cal.4th 35, 48.) Nowhere is this responsibility more important than in juvenile court.

Under the Pennsylvania Rules of Professional Responsibility, prosecutors have an

ethical obligation to ensure that the accused has been advised of the right to counsel

and has been given the opportunity to obtain counsel. (See also American Bar

Association Model Code of Professional Conduct 3.8 (b) [a prosecutor shall “make

reasonable efforts to assure the accused has been advised of the right to, and the

procedure for, obtaining counsel and has been given reasonable opportunity to obtain

counsel . . .”].) Before accepting a waiver of the right to counsel from juvenile

defendants, Pennsylvania’s Rules of Juvenile Court Procedure require a judge to

conduct on-the-record discussions or “colloquies” to ensure that the juveniles

understand the right they are giving up. (See also Faretta v. California (1975) 422 U.S.

806 [45 L.Ed.2d 562, 95 S.Ct. 2525]; Iowa v. Tovar (2004) 541 U.S. 77 [158 L.Ed.2d

209, 124 S.Ct. 1379].) Yet, prosecutors regularly witnessed Ciavarella deciding cases of

unrepresented juveniles without first engaging in the required colloquies but said

nothing. The Report of the Interbranch Commission concluded that “the prosecutors

clearly abdicated their roles as ministers of justice and simply became passive observers

to the tragic injustices that were perpetrated against juvenile offenders.”

Jonathan Ursiak’s first assignment when he joined the public defender’s office in 2007

was to represent juveniles in Ciavarella’s court. On a regular basis, he observed

juveniles admitting to crimes and being sentenced without an attorney and without the

required advisements of rights by the judge and waivers from the juveniles. This was

not the only practice in Ciavarella’s courtroom that troubled Ursiak – proceedings were

abbreviated, psychological evaluation reports were not provided to him before the

hearing, juveniles were being sent to placement at an alarmingly high rate, the judge’s

zero-tolerance policy impeded the juvenile’s right to be heard, and, in general, the

public defender was not given an adequate opportunity to advocate for his clients.

When Ursiak reported his concerns to his supervisor, he was told the public defender’s

office did not need more clients. Undeterred, Ursiak provided assistance to the Juvenile

Law Center of Philadelphia, which was investigating the suspected abuses in Luzerne

County’s juvenile court.

Ursiak’s courage and persistence in reporting Ciavarella’s improper practices should be

applauded. However, the silence of other attorneys who knew of the abuses in

Ciavarella’s courtroom is disturbing. Had others reported the misconduct when it first

occurred, the abuses and corruption might have been abated years earlier – saving

countless youthful offenders from a harsh and draconian fate suffered at Ciavarella’s

hand.

According to the Interbranch Commission’s report, no attorney practicing in Ciavarella’s

courtroom ever filed a complaint with the Pennsylvania Judicial Conduct Board, the

agency responsible for investigating complaints of judicial misconduct. Young

prosecutors recognized the inherent unfairness of Ciavarella’s practices, but did not

know what to do or to whom to turn for guidance. Many defense attorneys who

appeared before Ciavarella were equally derelict. Public defenders and private attorneys

routinely witnessed Ciavarella violate the rights of juveniles, including their own clients,

yet most took no action. The Interbranch Commission found that these attorneys

“clearly abdicated their responsibility to zealously defend their clients and to protect

their due process rights.” “At a bare minimum,” the commission concluded, “they

should have contacted their supervisors in the Public Defenders Office and the local bar

associations or notified the appropriate judicial or attorney disciplinary organizations.”

Many factors can deter an attorney from reporting judicial misconduct – indifference,

fear of retaliation, inexperience, ignorance. During its investigation, the Interbranch

Commission found that some attorneys did not know how or where to report judicial

misconduct. The commission encouraged Pennsylvania’s Judicial Conduct Board to

partner with the Pennsylvania Bar Association to create and implement programs to

educate attorneys and the public on the existence of the judicial disciplinary board and

on how to report judicial misconduct. The commission also recommended that the

Judicial Conduct Board revise and update its Website to provide clear, simple

directions for filing complaints. In California, the Commission on Judicial Performance

works with the State Bar to provide information concerning the process for reporting

judicial misconduct. The commission’s website offers user-friendly instructions on how

to file a complaint of judicial misconduct, as well as information on what constitutes

judicial misconduct.

As tragically illustrated in the “kids for cash” scandal, those in the legal community

share a mutual responsibility to take action when faced with abuses of judicial

authority. Indifference and inaction hurts not only the individual targets of the

misconduct but the reputation and integrity of the bar and the judiciary.

• Janice M. Brickley is Legal Advisor to Commissioners at the California Commission

on Judicial Performance.

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16 May 2013

Sacramento Superior Court Judges Violate State Law & Code of Judicial Ethics In Judge Pro Tem Conflict of Interest Disclosure Controversy

SACRAMENTO FAMILY COURT NEWS ANALYSIS UPDATE

In hundreds of cases, Sacramento Family Court judges have failed to make critical conflict of interest disclosures required by state law and the Code of Judicial Ethics, according to a courthouse whistleblower. The disclosure omission is ongoing and infects additional cases each week. The legitimacy of orders and judgments in cases tainted by the error are subject to challenge by trial court set-aside motions or costly appellate court review.

In most of the cases, one party is unrepresented and indigent - substantially reducing the chances that relief will be sought, but nonetheless requiring taxpayers to foot the bill in the event of subsequent proceedings due to the error. The potential public financial liability is significant. The current cost to taxpayers for a single appeal is between $8,500 and $25,500, according to recent appellate court decisions. New court records leaked by a

Family Court Judges Fail to Make Conflict of Interest Disclosure - Hundreds of Cases Tainted by Error

Sacramento Family Court reform advocates say the tattered flag that flies above the courthouse is emblematic of the systemic rule of law breakdown - including serial conflict of interest disclosure violations - which they assert has taken place in court proceedings.

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whistleblower and posted online exclusively by Sacramento Family Court News, including a conflict of interest disclosure filed by a civil court judge, show that other Sacramento County Superior Court judges do comply with conflict laws.

To continue reading, click Read more>> below...

As Sacramento Family Court News reported last year, there are more than 60 family law attorneys who also serve as volunteer temporary judges in Sacramento Family Court.

The potential conflict of interest error occurs when full-time family court judges fail to disclose to litigants when the opposing party is represented by an attorney who also serves as a temporary judge.

"It is overly-charitable to call this a 'failure to disclose,'" said a court source with direct knowledge on the matter but not authorized to speak on the record. "The disclosure never occurs. This is unwritten policy and it amounts to institutionalized concealment of conflict issues that by law must be disclosed. Each day that this continues, more cases are infected with the error and subject to challenge."

Sacramento Family Court News has independently verified that the temporary judge disclosure is not being made in cases where one party is unrepresented and the opposing party is represented by a judge pro tem attorney. One alleged motive is to reduce the chance that a litigant will attempt to disqualify a judge for cause.

"Family court judges are knowingly ignoring the conflict disclosure law because it reduces the odds that a litigant will try to disqualify the judge," the source explained. "This problem also represents a complete failure by court administrators, the Judicial Council, and the Judicial Branch oversight community to train, supervise and discipline family court judges."

In addition to violating state law - including California Rules of Court and the Code of Judicial Ethics - the concealment effectively deprives a party of the right to challenge the judge - a potentially reversible error that opens the door to subsequent collateral relief, according to the Judicial Council and the California Judges Association. Without the disclosure, "the judge may have concealed facts that would constitute a successful challenge to the judge's improper failure to recuse him/herself, thereby effectively depriving the litigant of his/her CCP 170.3 right to challenge the judge," according the CJA Ethics Opinion No. 45. The Ethics Opinion directive is mirrored by the Benchguide:

"A judge must disclose on the record information the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification...The parties should have an opportunity to weigh this information when considering whether to challenge the judge...Even if the parties decide to waive disqualification, disclosure helps ensure that they are fully informed when they do so," according to the Benchguide.

In the context of the disqualification of a judge, the Benchguide emphasizes that no actual bias is required: "If an

The Legal Duty To Disclose

Sacramento Family Court judges are required to disclose on the recordall information relevant to the question of disqualification.

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average person could entertain doubt about the judge's impartiality, disqualification is mandated," according to section 2.16 of the Benchguide. In addition, under Code of Civil Procedure §170.1(a)(6) bias may be implied between a party and a judge that is not otherwise a statutory ground for disqualification, according to section 2.19 of the Benchguide. If bias or other conflicts are present, a judge must self-disqualify.

Sacramento Family Court News was recently leaked court documents showing examples where judges disqualified themselves because they believed their recusal "would further the interests of justice" or because "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." Click here, here and here to view the court records.

The egregious nature of the problem in Sacramento Family Court, and the distinction between disqualification and disclosure is illustrated by an actual disclosure provided by a whistleblower and filed by Sacramento County Superior Court Judge Richard K. Sueyoshi. Upon being assigned a civil case at the downtown, Gordon D. Schaber Courthouse, the judge complied with state law and disclosed to the parties and attorneys - on the record - any potential conflict of interest issues. In a minute order, the judge wrote:

"Upon review of the information provided by the parties, the court finds no grounds for its disqualification under Civil Procedure Code section 170.1. While it finds no basis for disqualification, the court, in an abundance of caution, discloses to all parties the following facts relating to [defendant's] counsel: (1) Prior to joining the bench, the court served as chair of a county bar committee for which [defendant's attorney] served as a committee member. The court's prior contact with [defendant's attorney] was limited to such context. (2) The court currently serves as a member of the Strategic Evaluation Committee, which was formed by the Chief Justice in March 2011 to evaluate and make findings and recommendations to improve the efficiency of the Administrative Office of the Courts." Click here to view the order.

Judge Sueyoshi disclosed a potential conflict with an attorney who he served with on a county bar committee before he became a judge. Sacramento Family Court judges currently, as sitting judges, meet monthly with the controversial Sacramento County Bar Association Family Law Executive Committee, and often attend and speak at the monthly luncheon meetings of the Bar Association Family Law Section.

All of the attorneys on the Executive Committee and many in the Family Law Section also serve as temporary judges in the same court. Yet the full-time family court judges do not disclose this critical information to opposing parties and attorneys as required by state law. For additional information about the troubling monthly meetings of judges, court administrators, and the Family Law Executive Committee, click here.

A self-evident potential conflict of interest exists when a private, for-profit attorney representing a client appears in a court where the same lawyer also serves as a volunteer temporary judge.

The full-time judge hearing the case is responsible for disclosing the potential conflict to the opposing party or attorney.

The disclosure is required by state law, including Code of Civil Procedure Sec. 170.1, Canon 2A and subsections of Canon 3 of the Code of Judicial Ethics, and the California Rules of Court Standards for Judicial Administration, Standard 10.20.

The reasons for the disclosure include ensuring that courtroom proceedings are conducted free of conflicts of interest and in a manner that is fair and impartial to all participants, and

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providing an opposing party all information necessary to make an informed decision whether to seek disqualification of the judge, according to several authorities, including Canons 3B(5), 3E(2), and the Judicial Council California Judges Benchguide.

"A judge must disclose on the record information the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for the disqualification...the parties should have an opportunity to weigh this information when considering whether to challenge the judge," according to the Benchguide.

The language of Canon 3E(2) mirrors the Benchguide:

"In all trial court proceedings, a judge shall disclose on the record information that is reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the judge believes there is no actual basis for disqualification."

In addition, under CCP §170.1(a)(6), bias may be implied from a connection between a party and a judge that is not a statutory ground for disqualification under CCP §170.1, according to the Benchguide. The conflict disclosure is considered so critical that it should even be made when the attorney in question is not a judge pro tem, but works at a law firm where another member of the firm is a temporary judge, according to a 2001 Ethics Update from the California Judges Association.

And under the Code of Judicial Ethics, every judge pro tem attorney must take or initiate appropriate corrective action if they become aware that another judge has violated any provision of the Code. Click here. To view a Judicial Council directive about required corrective actions, click here. There is no known case of a temporary judge attorney complying with this important, self-policing requirement.

The California Commission on Judicial Performance has disciplined judges for violating the Code of Judicial Ethics provisions that apply to conflicts of interest. Click here for examples of CJP conflict of interest disciplinary decisions.

The Ethics Committee of the California Judges Association provides all judges – both full-time and temporary – with advisory Ethics Opinions and Judicial Ethics Updates. The updates have been cited by the California Supreme Court, appellate courts, and the Commission on Judicial Performance. The Judicial Council uses CJA Ethics Opinions in the California Judges Benchguide. The California Code of Judicial Ethics is partly based on the former CJA Code of Judicial Conduct, which was the original judicial standards code in the state.

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In an Ethics Update issued in February,1992, the committee advised that full-time judges do not have to disqualify themselves when an attorney who also acts as a temporary judge in the same court appears before the judge. The 1992 Ethics Update advised that a judge should disclose knowledge of the attorney’s judge pro tem service to all parties and other attorneys.

In essence, the full-time judge is hearing a case in which a colleague - a part-time judge in the same court - is acting as a private, for-profit attorney. A judge who fails to disclose her or his knowledge that the attorney is a judge pro tem may violate Canons 2, 3C(1) and 3D of the Code of Judicial Ethics, according to the 1992 Ethics Update, which was based on the 1992 version of the Code of Judicial Ethics.

The Code of Judicial Ethics was updated in 1996. The revision changed the disclosure requirement from being optional ("judge should disclose"), to being mandatory ("judge shall disclose"). Since 1996, disclosure of potential conflict issues on the record is not optional. CJA emphasized the significance and ramifications of the change in Ethics Opinion No. 45, issued in January, 1997.

"If the judge fails to disclose...the judge may have concealed facts that would constitute a basis for a successful challenge to the judge's improper failure to recuse him/herself, thereby effectively depriving the litigant of his/her CCP 170.3 right to challenge the judge," according to the CJA Opinion.

In a March, 2001 Ethics Update, CJA advised judges to apply a similar standard when an attorney serves pro tem in the judge’s court and a member of the attorney’s firm appears before the judge. CJA warned judges that failing to make the disclosure on the record may violate Canon 3 of the Code of Judicial Ethics. Canon 3E requires that "In all trial court proceedings, a judge shall disclose on the record information that is reasonably relevant to the question of disqualification...even if the judge believes there is no actual basis for disqualification."

Sacramento Family Court judges who fail to disclose judge pro tem attorney conflicts also may be in violation of other state and federal laws, according to courthouse sources. As Sacramento Family Court News reported in 2011, in September of that year the California Whistleblower Protection Act was revised to encompass the Judicial Branch of government, including judges, administrators and court employees.

The conflict of interest disclosure issue may constitute an improper governmental activity under the Act. Willful omission to perform duty and activities that are economically wasteful, involve gross misconduct, incompetency or inefficiency are all included in the definition of an improper governmental activity.

The massive scope of the conflict of interest disclosure problem may expose the court to financial liability in a civil lawsuit for the deprivation of civil and constitutional rights and other grounds. Federal criminal statutes also may apply. Federal criminal law prohibits conspiracy against civil rights and deprivation of rights under color of law.

Sacramento Family Court receives federal funding, and court users have a federally protected right to honest services. Family court judges and administrators who fail to provide honest services to the public may be subject to criminal prosecution under federal law.

Click here to view the list of attorneys who also serve as volunteer temporary judges.

Sacramento Family Court News acknowledges the anonymous sources who initially provided us with information for this article. We appreciate the tips. To send us

your anonymous tip by email, use our Contact Page. All communications are protected by the reporter's privilege and the California Shield Law. For further details

about our confidentiality policy, see our About Page and our Terms & Conditions Page. This is an updated version of an article originally published in April, 2012.

Related Content:* What the Temporary Judges Do - Watchdogs Claim Pro Tems Get Preferential Treatment & Court Runs Two-Tiered System

* Sacramento Family Court Temporary Judge List

Code of Judicial Ethics 1996 Revision

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15 July 2014

Judge Robert Hight Misconduct: Supreme Court Committee Confirms Systemic Judge Pro Tem Conflict of Interest Disclosure Law Violations

An attorney and Sacramento Family Court News reader provided the California Supreme Court Committee on Judicial Ethics Opinions Formal Opinion embedded at the bottom of this post. The opinion provides yet another legal reference specifying that family court judges must disclose potential conflicts of interest on the record. At court hearings where no court reporter is present, the disclosure must be in writing, according to the CJEO.

To continue reading, click Read more >> below:

In our original May, 2013 investigative report, we provided the legal authority, including Judicial Ethics Updates and Ethics Opinions from the California Judges Association requiring judges to disclose to opposing parties and attorneys when a judge pro tem attorney represents a client in court. As we reported at that time, in violation of state law family court judges were failing to make the required disclosure. The violations remain ongoing, and hundreds of cases are tainted by the error. Sacramento County Superior Court Presiding Judge Robert Hight is responsible for the oversight of temporary judges, according to the CJA, the Code of Judicial Ethics and other authority. Click here to view our 2013 report.

Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter. For additional reporting on the people and issues in this post, click the corresponding labels below the document:

Family Court Judge Pro Tem Conflict of Interest Disclosure Law - California Supreme Court Committee on

Sacramento Superior Court Judges Continuing Failure To Disclose Judge Pro Tem Conflicts Violates Supreme Court Committee on Judicial Ethics Opinions Directive

In May, 2013 Sacramento Family Court News reported that family court judges were violating state law by failing to disclose to opposing parties when a judge pro tem represents a client in court. The violations remain ongoing.

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CALIFORNIA SUPREME COURT

COMMITTEE ON JUDICIAL ETHICS OPINIONS

350 McAllister Street, Room 1144A

San Francisco, CA 94102

(855) 854-5366

www.JudicialEthicsOpinions.ca.gov

CJEO Formal Opinion No. 2013-002

[Issued December 11, 2013]

DISCLOSURE ON THE RECORD WHEN THERE IS NO COURT REPORTER

OR ELECTRONIC RECORDING OF THE PROCEEDINGS

I. Question Presented

The Committee on Judicial Ethics Opinions has been asked to provide an opinion

on the following question:

What constitutes an “on the record” disclosure by a trial judge pursuant to canon

3E(2)(a) of the Code of Judicial Ethics when there is no court reporter or

electronic recording of the proceedings?

II. Summary of Conclusions

The Code of Judicial Ethics requires that all disclosures be made “on the record.”

(Cal. Code of Jud. Ethics, canon 3E(2)(a).) Oral and implied disclosures that are not

made part of the record do not satisfy the canon. The simplest way for a judge to ensure

that a disclosure is part of the record is to state the disclosure in open court when a court

2

reporter is transcribing the proceedings or an electronic recording is being made of the

proceedings. However, not all proceedings are reported or electronically recorded. In

those circumstances, a judge must take steps to ensure that a document describing the

nature of any information being disclosed is made part of the case file and must also

make the disclosure orally in open court or otherwise notify the lawyers and parties of the

written disclosure.

III. Introduction

Canon 3E(2)(a) of the California Code of Judicial Ethics requires judges in all trial

court proceedings to disclose "on the record" any information that is reasonably relevant

to the question of disqualification under Code of Civil Procedure section 170.1, even if

the judge believes there is no actual basis for disqualification. Making disclosures in

open court when an official court reporter is transcribing the proceedings, or when the

proceedings are being electronically recorded and may be transcribed, is a simple and

efficient way to ensure that they are part of the record. However, due to recent court

budget cuts, more and more matters are being heard without benefit of a reporter or

electronic recording. Because a judicial officer must nonetheless satisfy canon 3E(2)(a)

and make “on the record” disclosures of information reasonably relevant to the question

of disqualification, the committee has been asked how judges can satisfy this ethical

obligation when there is no court reporter and no electronic recording. To provide

guidance, this opinion addresses what constitutes a record and how to make a disclosure

on the record.1

1 Campaign contribution disclosures under canon 3E(2)(b) and Code of Civ. Pro. §

170.1(a)(9)(C) are not encompassed in the question posed to the committee and are

beyond the scope of this opinion. The committee may address “on the record”

disclosures in these special circumstances in a separate opinion.

3

IV. Authorities

A. Applicable Canons2

Canon 3E(2)(a): “E. Disqualification and Disclosure. . . . (2) In all trial court

proceedings, a judge shall disclose on the record as follows: . . . (a) Information relevant

to disqualification. A judge shall disclose information that is reasonably relevant to the

question of disqualification under Code of Civil Procedure section 170.1, even if the

judge believes there is no actual basis for disqualifications.”

B. Other Authorities

California Code of Civil Procedure, sections 170.1, 170.1(a)(9)(B)-(C), 170.5(f),

269(a)-(b), and 1904.

Government Code, sections 68086, 68151(a)(1), (2), and (3), 68152(j)(14), 69957.

California Rules of Court, rules 2.952. 2.956(c) and (e)(1), 8.120(a), 8.122(b),

8.128(a), 8.320(a)-(b), 8.336(c), 8.388(b), 8.407(a), 8.480(b), 8.610(a), 8.832(a), 8.835,

8.860(a), 8.863, 8.867, 8.868, 8.910(a), 8.914, 8.920, 8.957 and 10.500(c)(1).

California Welfare & Institutions Code, sections 347, 677.

Adams v. Commission on Judicial Performance (1995) 10 Cal.4th 866, 903-906.

Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 113.

Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 893-894.

Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 932.

People v. Dubon (2001) 90 Cal.App.4th 944, 954.

California Judges Association, Ethics Committee Advisory Opinions 45, and 48.

Rothman, California Judicial Conduct Handbook (3d ed. 2007) section 7.73.

2 All further references to canons and to Advisory Committee commentary are to

the California Code of Judicial Ethics unless otherwise indicated.

4

V. Discussion

Canon 3E(2)(a) of the California Code of Judicial Ethics requires judges in all trial

court proceedings to make an "on the record" disclosure of information that is reasonably

relevant to the question of disqualification under Code of Civil Procedure section 170.1,

even if the judge believes there is no actual basis for disqualification.3 While the Code of

Judicial Ethics does not define “on the record,” California Supreme Court decisions and

other authorities interpreting canon 3E(2)(a) make clear that oral and implied disclosures

that do not become part of the record are insufficient (Adams v. Commission on Judicial

Performance (1995) 10 Cal.4th 866, 903-906 [general knowledge, affirmative references,

and incomplete oral disclosures constitute failure to disclose on the record for purposes of

waiver]; Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 893-

894 [no evidence of disclosure on the record where the judge claimed to have advised of

ex parte contacts at an in chambers sentencing with no record of the proceedings]; Cal.

Judges Assoc., Formal Ethics Opinion No. 45 (1997) p. 6 [the record or the clerk‟s

minutes of the proceedings must reflect a disclosure and merely mentioning to counsel is

insufficient]; Cal. Judges Assoc., Formal Ethics Opinion No. 48 (1999) p. 6 [implied

disclosure does not satisfy the requirement of disclosure on the record]).

These authorities raise the question of what constitutes a record in trial court

proceedings and, more specifically, how to accomplish making a disclosure part of the

record where there is no record of oral proceedings.

A. What constitutes a record?

Because the canons do not define “on the record” for purposes of judicial

disclosures, we look to other sources for guidance. Several statutes define records of

court proceedings in broad terms. The Code of Civil Procedure defines a judicial record

as the “record or official entry of the proceedings in a Court of justice, or of the official

3 The committee has not been asked to provide an opinion on the sufficiency of any

particular disclosures under the Code of Judicial Ethics and other statutes.

5

act of a judicial officer, in an action or special proceeding” (Code Civ. Proc., § 1904).

For purposes of trial court record management, the Government Code provides that a

court record consists of “. . . [a]ll filed papers and documents in the case . . . ,”

[a]dministrative records filed in an action or proceeding . . . [including] . . . transcripts,

and tapes of electronically recorded proceedings filed, lodged, or maintained in

connection with the case . . . ,” and other records, including minutes (§§ 68151(a)(1), (2),

(3), 68152(j)(14)). For purposes of judicial administration record requests, an

adjudicative record is defined as “. . . any writing prepared for or filed or used in a court

proceeding . . . .” (Cal. Rules of Court, rule 10.500(c)(1).)

The rules of court governing appellate matters are instructive because they narrow

the broad scope of trial court records for purposes of review on appeal. Those rules

specify that a record of trial court proceedings contains two parts: (1) the record of oral

proceedings, and (2) the record of written documents. (See, Cal. Rules of Court, rules

8.120(a)-(b) [civil appeals], 8.320(a)-(c) [criminal appeals].)

1. Record of Oral Proceedings

A record of proceedings is required to be made by an official shorthand court

reporter in juvenile proceedings (Welf. & Inst. Code, §§ 347, 677) and in felony

proceedings when requested by the defendant or prosecution (Code Civ. Proc., § 269,

subd. (a)(2)). Except in those matters where a reporter is required, local courts have the

discretion to decide, as a matter of court administration, whether an official reporter is

made available. (Welf. & Inst. Code, §§ 347, 677; Code Civ. Proc., § 269, subd. (a)(2);

Cal. Rules of Court, rule 2.956(e)(1).) In general civil matters where an official court

reporter is not made available by the court, the parties may arrange for the presence of a

certified shorthand reporter at their expense. (Gov. Code, § 68086; Cal. Rules of Court,

rule 2.956(c).) In all proceedings where a shorthand reporter makes a verbatim record, an

official transcript of the proceedings may be requested. (Code Civ. Proc., § 269, subd.

(b).) Thus, in those proceedings where a court reporter is present, oral disclosures made

in open court will be "on the record" as required by canon 3E(2)(a).

6

In some proceedings where neither the court nor a party provides an official

shorthand reporter, the local court may elect to make electronic recording equipment

available. (Gov. Code, § 59957 [electronic recording is permitted by statute in limited

civil, misdemeanor, and infraction proceedings only].) Written transcripts of official

electronic recordings may be prepared at the request of the court or a party. (Cal. Rules

of Court, rule 2.952(g).) In some circumstances, the electronic recording may be used as

the record of oral proceedings in lieu of a reporter's transcript prepared from the

recording. (Cal. Rules of Court, rule 2.952(i), (j).) Oral disclosures made in open court

at proceedings that are electronically recorded will also be "on the record" as required by

canon 3E(2)(a).

Although court reporters are statutorily required in juvenile and felony matters and

courts are authorized to provide electronic recording equipment in certain proceedings as

noted above, as a matter of practical reality and current economic constraints, neither

reporters, nor recording equipment, will be available in large numbers of proceedings that

come before the courts every day. Where there is no oral record, the record of written

documents becomes significant to the question of how a trial judge complies with the

obligation to make disclosures "on the record."

2. Record of Written Documents

While there is no definition of a record for purposes of judicial disqualification,

appellate rules identify what documents are recognized as the record of proceedings for

purposes of review. On appeal, the record of written documents is set forth in the clerk‟s

transcript, which generally includes notices, judgments, orders, minute orders, court

minutes, the register of actions, and other documents filed or lodged in the case (Cal.

Rules of Court, rules 8.120(a)(A), 8.122(b), 8.320(b), 8.336(c), 8.388(b), 8.407(a),

8.480(b), 8.610(a)(1), 8.832(a), 8.860(a)(1)(A), 8.910(a)(1)(A), 8.920(1)). In some

appellate matters, however, the record of written documents may alternatively consist of

the court‟s file, where allowed by local rule (Cal. Rules of Court, rules 8.120(a)(C),

8.128(a), 8.860(a)(1)(B), 8.863, 8.910(a)(1)(B), 8.914, 8.920(1)). In small claims

7

appeals, the record on appeal will always consist of the court file and all related papers

(rule 8.957).

For purposes other than judicial disqualification, several courts have evaluated

specific court documents and found that minute orders and the court‟s official minutes

suffice as “a record” when entered in the case file (People v. Dubon (2001) 90

Cal.App.4th 944, 954 [a minute order qualified as „a record‟]; Copley Press, Inc. v.

Superior Court (1992) 6 Cal.App.4th 106, 113 [official court minutes accurately and

officially reflect the work of the court]; Michael v. Aetna Life & Casualty Ins. Co. (2001)

88 Cal.App.4th 925, 932 [a court order is a document that is either entered in the court's

permanent minutes or signed by the judge and stamped „filed‟]).

From these cases and the rules of court, we conclude that all documents filed,

entered, or lodged in the case file constitute a trial court‟s written record of proceedings.

Such documents include minute orders, the official clerk‟s minutes, and formal orders

entered in the case file. Thus, when there is no court reporter or electronic recording, and

therefore no record of oral proceedings, disclosures must be made part of the written

record of proceedings in order to be “on the record” pursuant to canon 3E(2)(a).

B. How To Accomplish Making A Disclosure Part of the Record

Where there is not a reporter‟s transcript or electronic recording, an oral disclosure

may be made part of the written record of proceedings by preparing and entering a

disclosure document in the court file. The written disclosure may take many forms. It

may be a brief handwritten document that outlines the information disclosed. It may also

take the form of a formal, complete statement, detailing the content of the disclosure.

The written disclosure may also be entered in the case file in the form of a minute

order or official court minutes. However, merely having the clerk enter in the minutes

that a disclosure has been made would be insufficient. (Adams v. Commission on

Judicial Performance, supra, 10 Cal.4th 866, 903-906.) When this procedure is used, the

minutes should reflect both the fact that the disclosure was made and the nature of the

information disclosed. Although the task of documenting the disclosure may be

8

delegated to a clerk, ultimately it is the judge's responsibility to confirm that the nature of

the disclosure has been accurately documented and made a part of the case file. (See

Adams v. Commission on Judicial Performance, supra, 10 Cal.4th 866, 906 [failure to

disclose on the record in general terms the nature of the disqualifying relationship was

improper for purposes of waiver].)

Moreover, because disclosures are intended to provide the parties and lawyers

appearing before a judge with the information being disclosed, simply filing a written

disclosure document in the court file is not sufficient. (See Rothman, Cal. Judicial

Conduct Handbook (3d ed. 2007) § 7.73, p. 381 [purpose of canon 3E(2) is to provide the

parties and their counsel with information relevant to recusal determinations].) To

comply with the canons, a judge making disclosures where there is no court reporter or

electronic recording must document the disclosure as noted above and make the

disclosure orally in open court or otherwise notify the lawyers and parties of the written

disclosure.

VI. Conclusions

In order to comply with the canon 3E(2)(a) requirement that disclosures be made

“on the record,” trial court judges hearing matters that are not reported or electronically

recorded must ensure that any disclosures become a part of the written record of

proceedings. To accomplish this, disclosures must be documented in a writing that is

entered in the case file as a minute order, official clerk‟s minutes, or a formal order. The

lawyers and parties must also be notified orally or otherwise by service of the written

disclosure document.

As guidance, the committee provides the following steps that may be taken in all

cases where disclosure is required:

1. If the proceeding is being reported or electronically recorded, make an oral

disclosure in open court, stating in general terms the nature of any information

being disclosed.

2. If the proceeding is not being reported or electronically recorded:

9

a) Prepare or have prepared a disclosure document that states in general terms

the nature of any information disclosed;

b) Enter the disclosure document in the case file as a minute order, official

court minutes, or a formal order;

c) Make an oral disclosure in open court or otherwise notify the lawyers and

parties of the written disclosures; and

d) Check to confirm that the disclosure document accurately states the

information disclosed and that it is entered in the case file.

This opinion is advisory only (Cal. Rules of Court, rules 9.80(a), (e); Cal. Com.

Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rules 1(a), (b)). It is based

on facts and issues, or topics of interest, presented to the California Supreme Court

Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,

rule 9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the

committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)).

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08 June 2011

Family Law Divorce Attorneys Jacqueline Eston and Nancy Perkovich Judge Pro Tems Promote Software Sold by Wife of Hon. Matthew J. Gary

(updated)

Judge Matthew Gary Fails To Disclose Wife's Software and Legal Services Companies Conflict of Interest

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Donna Gary, the wife of Judge Matthew J. Gary has begun selling ClientTickler, a client management software program for attorneys, according to the Sacramento Business Journal.

"ClientTickler costs no more than $150 per user and has applications far beyond law firms. Busy soccer moms juggling a myriad of kid activities, for example. Or hair dressers who want to be free to fire off a message to a client who hasn't been in for a while. Gary has sunk more than $50,000 into the product, but expects to double that this month when she markets the launch. A trademark is pending," reported the Journal.

The Journal coverage includes a photo of Donna Gary with Sacramento divorce and family law attorneys Jacqueline Eston and Nancy Perkovich endorsing the product. Both Eston and Perkovich also serve as temporary judges in Sacramento Family Court.

"Jackie Eston, like Gary, was an administrative staffer for years. Then she went to law school. Now she practices family law in her own Sacramento office. 'There are lots of reminders and ticklers out there, but this one really does what Donna says,' Eston said. 'I use (other) computer systems as well, but none really do what the little box did,' Eston added. 'It's hard to be a lawyer and a businessperson - and this helps.'"

To continue reading, click Read more>> below...

Family court watchdogs point out that every attorney who appears in the courtroom of family court Judge Matthew J. Gary is either a potential customer of his wife, or is a customer of his wife, requiring the judge to disclose the potential conflict of interest in cases where one party is self-represented. "Of course, no one has ever heard of Gary disclosing the conflict of interest, which is required by required by the Code of Judicial Ethics," said watchdog Robert Saunders.

In the event of a conflict of interest, state law requires judges to disqualify themselves if, for example, a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial, or if the judge believes her or his recusal would further the interests of justice. To view a filed order where a judge self-

Judge Pro Tems and family law attorneys Jacqueline Eston and Nancy Perkovich help promote client management software sold by Donna Gary, wife of family court Judge Matthew J. Gary. Source: Sacramento Business Journal.

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disqualified on these grounds, click here.

The California Judges Benchguides series published by the Judicial Council includes a volume on Disqualification of a Judge. Click here to view the complete publication. Section 2.14 of the Benchguide covers the issue of the connection between a judge's family member and an attorney or party in a case. The section indicates that Judge Gary has, at a minimum, a legal duty to disclose on the record the potential conflict of interest posed by his wife's business. Click here.

Disclosure provides the parties an opportunity to weigh the information when considering whether to challenge the judge, according to the Benchguide. The Benchguide also emphasizes that no actual bias is required, and that bias may be implied from a connection between a party and a judge that otherwise is not a statutory ground for disqualification. Click here and here.

Under state law, even if a judge believes there is no actual basis for disqualification, they must still disclose on the record information the judge believes the parties or their attorneys might consider relevant to the question of disqualification. Click here for the applicable California Rules of Court and Code of Judicial Ethics Canon cited by the judge disqualification Benchguide.

In this minute order, Sacramento County Superior Court Judge Richard K. Sueyoshi complied with state law applicable to the disclosure of information relevant to the question of disqualification:

"While it finds no basis for disqualification, the court, in an abundance of caution, discloses to all parties, the following facts relating to [defense] counsel: (1) Prior to joining the bench, the court served as chair of a county bar committee for which [defense counsel] served as a committee member. The court's prior contact with [defense counsel] was limited to such context. (2) The court currently serves as a member of the Strategic Evaluation Committee, which was formed by the Chief Justice in March 2011 to evaluate and make findings and recommendations to improve the efficiency of the Administrative Office of the Courts." Click here to view Judge Sueyoshi's written disclosure.

All family court judges also are required to disclose to opposing parties on the record the potential conflict of interest that occurs when a judge pro tem appears in court as private counsel. Court watchdogs who have conducted informal audits of a number of family court case files say there is no indication that the conflict disclosure has ever been made.

"This is yet another example of the flagrant cronyism between judges and family law attorneys who also act as judge pro tems. Since there is no oversight or accountability for judges who violate ethics rules, they don't even bother to conceal it," Saunders said.

California Judicial Council Standards

Disclosure vs. Disqualification

Judge Matthew Gary is required to disclose on the record information relevant to the question of disqualification even if he believes there is no actual basis for disqualification,

according to this Benchguide from the Judicial Council.

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Labels: AGGREGATED NEWS, ClientTickler, CONFLICT OF INTEREST, DONNA GARY, JACQUELINE ESTON, JUDGE PRO TEM,

In addition, under the Code of Judicial Ethics, as sworn temporary judges both Eston and Perkovich are required to take or initiate appropriate corrective action if they receive reliable information that another judge has violated any provision of the Code. The mandatory requirement is a critical self-policing component of judge ethical standards. Click here to view a Judicial Council directive about the duty to take corrective action and the types of actions required.

Donna Gary also owns Legal Administrative Services, which provides billing and bookkeeping for law firms. Gary's company also helps lawyers who want to leave law firms and strike out on their own. She's handled more than 35 local startups, according to the Journal.

Judge Matthew J. Gary is paid $169,289 per year, and was appointed to the bench by Gov. Arnold Schwarzenegger in 2007. Schwarzenegger was named in the 2010 Worst Governors Report by the government watchdog group Citizens for Responsibility and Ethics in Washington. Among other charges, Schwarzenegger was faulted for providing "state jobs to friends with dubious qualifications." Click here.

In a 2007 interview with Sacramento Lawyer magazine, Gary characterized his legal philosophy as "favoring judicial restraint," and said he admired U.S. Supreme Court Justice Antonin Scalia.

Judge Gary was found guilty in 2010 by San Joaquin County Superior Court Judge Xapuri B. Villapudua of not following proper contempt procedures when he had a disabled litigant arrested and forcibly removed from his courtroom.

Gary is a graduate of El Camino High School in Sacramento and previously worked at his father’s law firm, Gary, Till & Burlingham. His father, Richard Gary, is a family law attorney. Links on the firm's resources page include the Christian Legal Society and the Christian Counseling & Educational Foundation.

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