BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1322|
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THIRD READING
Bill No: AB 1322
Author: Evans (D)
Amended: 6/29/05 in Senate
Vote: 27 - Urgency
SENATE JUDICIARY COMMITTEE : 7-0, 7/12/05
AYES: Dunn, Morrow, Ackerman, Cedillo, Escutia, Figueroa,
Kuehl
ASSEMBLY FLOOR : 74-0, 4/21/05 - See last page for vote
SUBJECT : Judges: disqualification standards
SOURCE : California Judges Association
Judicial Council of California
DIGEST : This bill supplements 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
CONTINUED
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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 defines the
phrases "participating in discussions" and "has
participated in discussions."
ANALYSIS : Existing law sets forth a number of grounds
for the required disqualification of a judge. [Section
170.1 of the Code of Civil Procedure (CCP)] 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 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.
[Section 170.1(a)(8) of the CCP]
This bill adds "prior employment or service as a dispute
resolution neutral" to Section (a)(8) as a ground for
disqualification, as specified.
This bill requires (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 defines "participating in discussions" or "has
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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 provides
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
"participating in discussions."
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/13/05)
California Judges Association (co-source)
Judicial Council of California (co-source)
American Federation of State, County, and Municipal
Employees
California Dispute Resolution Council
Consumer Attorneys of California
ARGUMENTS IN SUPPORT : 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
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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."
The Judicial Council of California 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
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."
ASSEMBLY FLOOR :
AYES: Aghazarian, Arambula, Baca, Benoit, Berg, Bermudez,
Blakeslee, Bogh, Calderon, Canciamilla, Chan, Chavez,
Chu, Cogdill, Cohn, Coto, Daucher, De La Torre, DeVore,
Dymally, Emmerson, Evans, Frommer, Garcia, Goldberg,
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Hancock, Harman, Haynes, Jerome Horton, Shirley Horton,
Houston, Huff, Jones, Karnette, Keene, Klehs, Koretz, La
Malfa, La Suer, Laird, Leno, Leslie, Levine, Lieber, Liu,
Matthews, Maze, McCarthy, Mountjoy, Mullin, Nakanishi,
Nava, Negrete McLeod, Niello, Parra, Plescia, Richman,
Ridley-Thomas, Sharon Runner, Ruskin, Saldana, Salinas,
Spitzer, Strickland, Torrico, Tran, Umberg, Vargas,
Villines, Walters, Wolk, Wyland, Yee, Nunez
NO VOTE RECORDED: Bass, Gordon, Montanez, Nation, Oropeza,
Pavley
RJG:mel 7/14/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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