BILL ANALYSIS
AB 1322
Page 1
Date of Hearing: April 5, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1322 (Evans) - As Amended: March 29, 2005
As Proposed to be Amended
SUBJECT : JUDGES: DISQUALIFICATION
KEY ISSUE :SHOULD THE LAW REGARDING DISQUALIFICATION OF JUDGES
FROM SITTING IN CERTAIN CIVIL MATTERS BE CLARIFIED WITH RESPECT
TO CONTACT WITH ARBITRATION AND OTHER ADR PROVIDERS?
SYNOPSIS
This non-controversial bill clarifies a recent law regarding
disqualification of a judge in a civil matter when that judge
has an arrangement regarding prospective employment or service
with an alternative dispute resolution (ADR) company or
otherwise as an ADR official, or has participated in discussions
regarding such employment or service. The need for
clarification results from a recent appellate court decision
that, supporters contend, could possibly have negative
repercussions for orderly litigation and the administration of
the courts.
SUMMARY : Clarifies the grounds for disqualification of a judge
in a civil matter. Specifically, this bill :
1)Makes clear that when a judge has a current arrangement
concerning prospective employment or other compensated service
as a dispute resolution neutral or has participated in
discussions regarding the prospective employment or service or
has been engaged in such employment or service, he or she is
not subject to disqualification unless specified conditions
are met.
2)In addition, clarifies that a judge is not subject to
disqualification unless she or he has participated in
meaningful employment discussions, as specified.
EXISTING LAW provides that a judge shall be disqualified if,
among other grounds, the judge has a current arrangement
concerning prospective employment or other compensated service
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as a dispute resolution neutral or is participating in, or,
within the last two years has participated in, discussions
regarding such prospective employment or service, and either of
the following applies: (A) The arrangement is, or the discussion
was, with a party to the proceeding; (B) The matter before the
judge includes issues relating to the enforcement of an
agreement to submit a dispute to alternative dispute resolution
or the appointment or use of a dispute resolution
neutral. (Code of Civil Procedure section 170.1).
FISCAL EFFECT : As currently in print, this bill is keyed
non-fiscal
COMMENTS : According to the author, the purpose of this bill is
to "prevent the wholesale disqualification of civil judges which
might result from an overly broad interpretation of the
standards contained in Code of Civil Procedure Section 170.1.
Specifically, in Hartford Casualty v. Superior Court, the Second
District Court of Appeal held that the language of Section
170.1, as it relates to alternative dispute resolution, is
unambiguous and must be applied as stated." The sponsors, the
Judicial Council and California Judges Association, express
concern that, read literally, the language of subdivision (a)(8)
could be interpreted to require disqualification if a judge has
had any discussions concerning prospective employment as a
dispute resolution neutral. The Judicial Council notes, "Since
under Judicial Council case management rules judges are required
to consider what ADR process might be appropriate for a case,
this raises a concern that section 170.1(a)(8) will be triggered
in virtually every civil case."
Likewise, the Consumer Attorneys of California argues that a
literal interpretation is overly broad and invites game-playing
in litigation.
This Bill Clarifies The Legislature's Intention Regarding
Recently Enacted Restrictions On Solicitation Of Employment By
Public Judges While They Are Sitting On The Bench. The
provision of law at issue was enacted in 2002 following this
Committee's investigation of the private judging industry,
sparked in part by allegations that some judges are being lured
away from public service by major arbitration provider firms,
sometimes engaging in employment discussions with firms when an
arbitration issue or provider client may be before the court.
This issue was discussed in an article by Reynolds Holding,
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"Judge's Action Casts Shadow on Court's Integrity, Lure of
High-paying Jobs as Arbitrations May Compromise Impartiality,"
S. F. Chronicle, Oct. 9, 2001, p. A13. The Chronicle article
raised the concern that the "lure of high-paying jobs as
arbitrators may compromise [the] impartiality" of judges.
According to the article, arbitration providers compete to hire
"the biggest names on the bench." Raising concern about the
practice, Anthony Kline, Presiding Justice of the First District
Court of Appeal, Division Two, told the Chronicle, "Lawyers are
increasingly worried about the objectivity of judges who seek
assignments they think will enhance their chances of landing a
job as a private arbitrator." Perhaps even more disturbingly,
the Chronicle suggested that judges deciding cases involving
arbitration disputes might be more inclined to send the case to
arbitration if the judge is set to join the arbitration firm
that would get the case. The same concern has also been
expressed about the potential over-use of involuntary judicial
references to arbitration firms a judge may join upon leaving
the bench.
Justice Kline further illuminated his concerns in testimony to
the Committee. Justice Kline testified that while he was aware
of no empirical studies, and indeed doubted whether such study
was possible, anecdotal evidence suggested that the attitudes of
public judges have begun to be influenced by their private
judging prospects after they leave the bench. Justice Kline
commented that judicial authority depends on the deference that
people give to the courts, and opined that any threat to the
reputation of the judiciary must be taken seriously. Justice
Kline suggested at the time that the Legislature may wish to
consider requiring judges to observe a waiting period before
accepting employment as a private arbitrator after leaving
office. He noted that the California Constitution prohibits
public judges from leaving the bench to accept another public
office throughout the period for which the judge was elected in
order to dispel any perception that a judge's rulings might be
influenced by his or her personal interests in future
employment. Others remarked at the time that California
legislators must likewise observe a hiatus after leaving office
before they may lobby their former colleagues, and that the
California Supreme Court by rule prohibits former law clerks
from returning to argue cases before the court for a period of
time.
The California Judges Association, however, opposed a proposal
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to impose a hiatus period, and the Legislature instead enacted
the current provision permitting arbitration providers and
judges to engage in employment discussions while the judge was
serving as a judicial officer, but requiring that the judge be
disqualified in certain specified matters where the judge's
prospective employment or discussions regarding prospective
employment could be perceived to undermine the judge's
impartiality.
As the author and sponsors note, however, read literally the
language of subdivision (a)(8), potentially could be
inappropriately interpreted to require disqualification if a
judge has had any discussions concerning prospective employment
as a dispute resolution neutral, even if the discussions were
entirely superficial or even negative, or if the matter before
the judge involves any appointment or use of a dispute
resolution neutral, no matter how far removed from the judge.
Certainly, public judges whose authority rests fundamentally on
the well-deserved public esteem for the integrity of the
judiciary would be prudent to avoid the potential perception of
impropriety by making it clear to private ADR companies and
others that any discussion regarding future employment in ADR
while the judge holds his or her appointment would be unwelcome.
Nevertheless, if the judge is the subject of an unsolicited
approach by an ADR provider who fails to respect proper
boundaries, the provider's behavior should not be determinative
of the judge's disqualification, just as disqualification should
not be warranted where, as in the Hartford case, the judge
referred the parties in the case to mediation at the request of
the parties and had no involvement in the identification or
selection of the mediator.
The bill, as proposed for amendment, would clarify these tests
to better express the Legislature's intention that
disqualification is indicated only when the judge has
meaningfully participated in these discussions or entertained
the proposal, and only if the matter before the judge, among
other things, concerns the enforceability of an ADR agreement,
review of a decision arising from an ADR process, the judge
directs the parties to participate in an alternative dispute
resolution process using the dispute resolution neutral or ADR
provider with whom the judge has the defined conflict of
interest or the judge will select or use a dispute resolution
neutral and the neutral or provider with whom the judge has the
conflict is among whom the judge has participated in
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discussions.
Author's Technical Amendments To Clarify Intent. In order to
clarify the scope and meaning of the bill, the author
appropriately proposes the following amendments to the bill as
it now appears in print:
8) (A) The judge has a current arrangement concerning
prospective
employment or other compensated service as a dispute resolution
neutral or is participating in, or within the last two years has
participated in, discussions regarding the prospective
employment or service or has been engaged in such employment or
service , and any of the following applies:
(i) The arrangement is, or the prior employment or discussion
was, with a party to the
proceeding.
(ii) The matter before the judge includes issues relating to
the
enforcement of an agreement to submit a dispute to an
alternative dispute resolution process or an award or other
final decision by a dispute resolution neutral; or
(iii) b) The judge directs the parties to participate in an
alternative dispute resolution process in which the dispute
resolution neutral will be an individual or entity with whom the
judge has the arrangement, has previously been employed or
served, or is discussing or has discussed the employment or
service; or
(iv) The judge will select or use a dispute resolution neutral
or entity to conduct an alternative dispute resolution process
in the matter before the judge, and among those available for
selection is an individual or entity with whom the judge has the
arrangement, has previously been employed or served, or with
whom the judge is discussing or has discussed the employment or
service.
(B) For the purposes of this paragraph, all of the following
apply:
(i) "Participating in discussions" or "has participated in
discussions" means that the judge solicited or otherwise
indicated an interest in accepting or negotiating actively
participated in making inquires regarding the terms or
conditions of possible employment or service as an alternative
dispute resolution neutral or responded to an unsolicited
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statement regarding, or offer of, such employment or service by
expressing an interest in such employment or service or
encouraging the person making the statement or offer to provide
additional information about such possible employment or
service. If a judge's response to an unsolicited statement
regarding, question about, or offer of prospective employment or
other compensated service as a dispute resolution neutral is
limited to responding negatively, declining the offer, or
declining to discuss such employment or service, that response
does not constitute participating in discussions.
SEC. 2. It is the intent of the Legislature in enacting this
act to construe and clarify the meaning and effect of existing
law and to reject the interpretation given to the law in
Hartford Casualty Insurance Company v. Superior Court of Los
Angeles , 125 Cal. App. 4th 250 (2004).
Prior Related Legislation. AB 2504 (Jackson), Ch. 1094, Stats
2002, added subdivision (8)(a) to section 170.1, as discussed
above.
REGISTERED SUPPORT / OPPOSITION :
Support
California Judges Association (co-sponsor)
Judicial Council of California (co-sponsor)
California Dispute Resolution Council
Consumer Attorneys of California
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334