BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1322 A
Assembly Member Evans B
As Amended June 29, 2005
Hearing Date: July 12, 2005 1
Code of Civil Procedure 3
ADM:cjt 2
2
SUBJECT
Judges: Disqualification Standards
DESCRIPTION
This bill would supplement the disqualification rules for
any judge who has a current arrangement for prospective
employment or other compensated service as a dispute
resolution neutral, or who is having or has had within the
previous two years a discussion regarding that prospective
employment or service, to include disqualification where:
1) 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 2) the judge will select 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 or with whom the judge is discussing or has
discussed the employment or service.
This bill would define the phrases "participating in
discussions" and "has participated in discussions."
This bill contains an urgency clause.
BACKGROUND
(more)
AB 1322 (Evans)
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In 2002, Code of Civil Procedure (CCP) Section 170.1 was
amended to require the disqualification of a judge who has
a current arrangement for prospective employment or other
compensated service as a dispute resolution neutral, or who
is having or has had within the previous two years a
discussion regarding that prospective employment or
service, where: 1) the arrangement or discussion is or was
with a party to the proceeding, or 2) the matter before the
judge includes issues related to the enforcement of an
agreement to submit a dispute to alternative dispute
resolution or the appointment or use of a dispute
resolution neutral. [CCP Section 170.1(a)(8).]
In Hartford Casualty Insurance Co. v. Superior Court (2004)
125 Cal.App.4th 250, review granted, Mar. 23, 2005, the
court held that a judge is obligated to disqualify him or
herself, pursuant to CCP Section 170.1(a)(8), where the
judge received superficial, unsolicited contacts from
multiple providers regarding prospective employment or
service as a neutral. The Hartford court also determined
that application of Section 170.1(a)(8) was triggered when
the judge referred the parties to mediation, but had no
involvement in the selection of the mediator. The court
reasoned that, under the plain terms of Section
170.1(a)(8), the judge was obligated to disqualify himself,
even though the contacts with providers were superficial
and unsolicited.
The author and proponents assert that the Hartford decision
is an overly broad and too literal interpretation of CCP
Section 170.1(a)(8) that threatens to result in the
wholesale disqualification of civil judges. This bill is
intended to refine and clarify Section 170.1 to prevent any
such wholesale disqualification of judges, and potentially
moot the Hartford case pending before the Supreme Court.
CHANGES TO EXISTING LAW
Existing law sets forth a number of grounds for the
required disqualification of a judge. [CCP Section 170.1.]
Under existing law , one of those grounds for required
disqualification is where the judge has a current
arrangement concerning or other compensated service as a
dispute resolution neutral or is participating in, or,
within the last two years has participated in, discussions
AB 1322 (Evans)
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regarding such prospective employment or service, and
either of the following applies: 1) the arrangement is, or
the discussion was, with a party to the proceeding, or 2)
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. [CCP Section 170.1(a)(8).]
This bill would add "prior employment or service as a
dispute resolution neutral" to Section (a)(8) as a ground
for disqualification, as specified.
This bill would require [in addition to (1) and (2) above]
disqualification where: 1) 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
[concerning prospective employment or other compensated
service as a dispute resolution neutral], has previously
been employed or served, or is discussing or has discussed
the employment or service, or 2) the judge will select 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 or with whom the judge is discussing or has
discussed the employment or service.
This bill would define "participating in discussions" or
"has participated in discussions" to mean that the judge
solicited or otherwise indicated an interest in accepting
or negotiating possible employment or service as an
alternative dispute resolution neutral or responded to an
unsolicited statement regarding, or an offer of, such
employment or service by expressing an interest in that
employment or service, making any inquiry regarding the
employment or service, or encouraging the person making the
statement or offer to provide additional information about
the employment or service. This bill further would provide
that, if a judge's response to an unsolicited statement
regarding a question about, or an 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
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"participating in discussions."
COMMENT
1. Need for the bill
The author states:
The purpose of AB 1322 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
[review granted March 23, 2005], 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. 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, even if the discussions were
entirely superficial or even negative, if the matter
before the judge involves any appointment or use of a
dispute resolution neutral, no matter how far removed
from the judge.
Judicial Council also asserts that the Hartford decision
holding that application of Section 170.1(a)(8) is
triggered even when a judge refers the parties to
mediation, but has no involvement in the identification
or selection of the mediator, is problematic. This is
because, under Judicial Council case management rules,
judges are required to consider what ADR (alternative
dispute resolution) process might be appropriate for a
case, and the Hartford holding could be read to trigger
Section 170.1 in virtually every civil case, thus
threatening the wholesale disqualification of judges in
civil cases.
The author states:
The bill would clarify these [disqualification] tests
to better express the Legislature's intention that
disqualification is indicated only when the judge has
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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 [alternative dispute
resolution] agreement, review of a decision arising
from an ADR 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
[those with] whom the judge has participated in
[prospective employment] discussions.
3. Definitions
Current law does not define "participating in
discussions" or "has participated in discussions"
regarding prospective employment as a dispute resolution
neutral. This bill would define those terms to mean that
the judge solicited or otherwise indicated an interest in
accepting or negotiating possible employment or service
as an alternative dispute resolution neutral, or
responded to an unsolicited statement regarding, or an
offer of, such employment or service by expressing an
interest in that employment or service, making any
inquiry regarding, or encouraging the person making the
statement or offer to provide additional information
about the employment or service. The bill would further
provide that, if a judge's response to an unsolicited
statement regarding, a question about, or offer of,
prospective employment as a neutral, is limited to
responding negatively, declining the offer, or declining
to discuss such employment, that response does not
constitute participating in discussions.
4. Proponents state bill responds to overly broad holding
and too literal interpretation of CCP Section 170.1(a)(8)
in Hartford Casualty Insurance
Proponents assert that the Hartford court, in holding
that a judge who received superficial, unsolicited
contacts from multiple ADR providers regarding potential
prospective employment or referred parties to mediation
without involvement in the mediation process, read
Section (a)(8) overly broadly and too literally. "This
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raises the concern that judges cannot do anything to
prevent disqualification when an ADR provider initiates
such contact, even when the result of that contact is the
judge informing the provider that he or she is not
interested in such employment." The court took note of
the likelihood that many judges have or will receive
unsolicited, superficial overtures from multiple ADR
providers that may require disclosure, disqualification,
or setting aside of past rulings even though the judges
indicated no interest in the providers. [125 Cal.App.4th
at 253.]
Proponents further assert that the court acknowledged
that its decision has the potential for mischief:
It is true that parties dissatisfied with a judge's
rulings in a case may request appointment of a dispute
resolution neutral, wagering that the judge may have
discussed future employment as a dispute resolution
neutral and so will become disqualified. That tactic
certainly will undermine the time and number
limitations imposed by section 170.6 on parties'
ability to jettison a judge they feel is unfavorable.
However, we are bound to apply the disqualification
provisions of section 170.1, subdivision (a)(8)(B), as
written by the Legislature. [125 Cal.App.4th at 257.]
Proponents suggest the court is subtly calling upon the
Legislature to amend this provision.
5. The California Judges Association (CJA) and the
Judicial Council (JC) publicly support the bill and
request a legislative solution of a matter pending before
the California Supreme Court
On March 23, 2005, the California Supreme Court granted
review of the Hartford case. Despite this action by the
Supreme Court, the author and proponents have chosen to
move forward with the bill. The JC and the CJA have come
out in strong public support of the bill, and are in fact
co-sponsors. The JC, the policymaking body of the
California courts, sent a letter to the committee asking
its members to vote in favor of the bill. Does this
raise a conflict of interest concern? Is it appropriate
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for the policymaking body of the courts to be asking the
Legislature to amend existing law that is the subject of
a pending appeal before the California Supreme Court?
6. Bill contains urgency clause
The stated need for the act to take effect immediately is
to "clarify the law to avoid wholesale disqualifications
of civil judges that could severely hamper a trial
court's ability to manage its civil litigation calendar."
Support: CA Dispute Resolution Council (CDRC); Consumer
Attorneys of CA (CAOC); American Federation of
State, County, and Municipal Employees (AFSCME)
Opposition: None Known
HISTORY
Source: CA Judges Association; Judicial Council of CA
Related Pending Legislation: None Known
Prior Legislation: AB 2504 (Jackson, Statutes of 2002,
Chapter 1094), which added subdivision (a)(8)
to CCP Section 170.1 (see Changes to Existing
law above)
Prior Vote: Assembly Judiciary (Ayes 9, Noes 0)
Assembly Floor (Ayes 74, Noes 0)
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