BILL ANALYSIS
AB 1322
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CONCURRENCE IN SENATE AMENDMENTS
AB 1322 (Evans)
As Amended August 18, 2005
2/3 vote. Urgency
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|ASSEMBLY: |74-0 |(April 21, |SENATE: |38-1 |(August 23, |
| | |2005) | | |2005) |
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Original Committee Reference: JUD.
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)Clarifies that a judge is not subject to disqualification
unless she or he has participated in meaningful employment
discussions, as specified.
The Senate amendments add an urgency clause, and clarify that
"participating in discussions" includes making any inquiry
regarding the employment or service.
AS PASSED BY THE ASSEMBLY , this bill was substantively
identical.
FISCAL EFFECT : None
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 (JC) and California Judges Association, express
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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. JC notes, "Since under Judicial
Council case management rules judges are required to consider
what ADR [alternative dispute resolution] 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.
The provision of law at issue was enacted in 2002 following the
Judiciary 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.
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 Hartford , 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.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
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