CJEO Oral Advice Summary No. 2018-025 — Disqualification and Disclosure Duties of a Trial Judge Assigned as an Appellate Justice

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Oral Advice Summary 2018-025
[Issued October 18, 2018]
DISQUALIFICATION AND DISCLOSURE DUTIES OF A TRIAL JUDGE
ASSIGNED AS AN APPELLATE JUSTICE
I. 	Question
Does a trial court judge assigned to hear a matter in an appellate court have
disqualification and disclosure obligations as an appellate justice or as a trial court judge?
A trial court judge who has been invited to sit on assignment as a pro tempore justice
of an appellate court asks for advice about whether any of the following circumstances
raise ethical concerns with accepting assignment: the appellate matter includes parties
from whom the trial court judge received campaign contributions during the judge’s
recent judicial election; the judge also accepted a campaign contribution from a third
party entity, or super political action committee (PAC), that accepted contributions from
named parties in the appellate matter; and, finally, the judge is an active member of an

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organization devoted to the law, the legal system, and the administration of justice, which
includes parties to the appellate matters as other members of the organization.
II. 	Oral Advice Provided
Disqualification and disclosure rules differ for trial court judges and appellate
justices, but those rules apply based on the type of proceeding rather than on a judicial
officer’s formal title or status. (Mosk v. Superior Court (1979) 25 Cal.3d 474, 483 [an
assigned judge pro tempore generally has the same power and authority as a regular judge
of the court to which he or she is assigned].) Here, the trial court judge would have no
mandatory duty to disqualify or disclose the reported campaign contributions from parties
in the appellate proceeding, which were all under the $5,000 limit requiring appellate
justice disqualification. (Cal. Code Jud. Ethics, canon 3E(5)(j).) 1 Nor would the judge
have a duty to disqualify or disclose the third party super PAC contribution. Similarly,
the trial court judge would have no mandatory duty to disqualify or disclose the judge’s
membership in an organization devoted to the law, the legal system, and the
administration of justice.
However, as an appellate justice pro tempore, the judge is obligated to make a
discretionary decision to disqualify in the assigned matter if the judge believes recusal
would further the interests of justice or the circumstances are such that a reasonable
person aware of the facts might doubt impartiality. (Canon 3E(4)(a) & (c).) The party
contributions below the canon limit for mandatory appellate justice disqualification are
circumstances the judge should consider when making a discretionary decision about
whether a reasonable person aware of those contributions through the judge’s publically
available Fair Political Practices Commission (FPPC) filings, or any other circumstances
1 	All further references to canons and to Advisory Committee commentary are to the
California Code of Judicial Ethics unless otherwise indicated.

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related to the campaign or memberships, would doubt the judge’s impartiality in the
appellate matter.
III. 	Analysis
(a). Applicable Rules
The disqualification and disclosure requirements for trial court judges differ from
those applicable to appellate court justices. For example, it is mandatory for a trial court
judge to disqualify for all campaign contributions over $1,500 from a party or lawyer in
the proceedings. (Code Civ. Proc. § 170., subd. (a)(9)(A) & (B); CJEO Formal Opinion
2013-005, Disqualification Based on Judicial Campaign Contributions from a Lawyer in
the Proceedings, Cal. Supreme Ct., Com. Jud. Ethics Opns., p. 9.) Appellate Justices, on
the other hand, are required to disqualify only for such contributions over $5,000.
(Canon 3E(5)(j).)
The differences in disclosure requirements are more significant. A trial court judge
must disclose information that is “reasonably relevant to the question of disqualification .
. . , even if the judge believes there is no actual basis for disqualification.” (Canon
3E(2)(a); canon 3E(2)(b)(i) [judge who was a candidate for judicial office in a trial court
election must disclose any contribution of $100 or more from a party, even if the amount
would not require disqualification]; Advisory Com. com. foll. canon 3E(2)(b) [additional
required campaign contribution disclosures might include those made by a party to a third
party in support of a trial court judge’s campaign, such as a super PAC contribution made
by a party]; Code Civ. Proc. § 170.1, subd. (a)(9)(C) [trial court judges must specifically
disclose any campaign contribution by a lawyer or party in the proceeding].)
In contrast, appellate justices have no disclosure duties under either the canons or
statute. (CJEO Oral Advice Summary 2018-023, Disqualification Responsibilities of
Appellate Court Justices, Cal. Supreme Ct., Com. Jud. Ethics Oral Adv. Sum., p. 3;

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Rothman et al., Cal. Jud. Conduct Handbook (4th ed. 2017) § 7:90, pp. 501-503
[disclosure requirement in the appellate context would be more complex than in trial
courts because there is no face-to-face contact with the parties until the hearing date, after
the briefs are examined and a tentative decision is discussed by the appellate court
justices].) An appellate court justice may, but is not required to, disclose information
relevant to the decision to not disqualify himself or herself. (CJEO Oral Advice
Summary 2018-063, supra, at p. 3.)
It is clear from these canons and statues, and other authorities interpreting them,
that the differing disqualification and disclosure rules apply based on the type of
proceeding rather than on the judicial officer’s formal title or status. (Canon 3E(2)
[disclosure requirement for information relevant to disqualification expressly applies in
trial court proceedings]; Mosk v. Superior Court, supra, at. p. 483 [an assigned judge pro
tempore generally has the same power and authority as a regular judge of the court to
which he or she is assigned].) Thus, a trial court judge invited to sit on assignment as a
pro tempore justice of the Supreme Court would be subject to the disqualification and
disclosure obligations applicable to an appellate court justice.
(b). No Mandatory Duty to Disqualify or Disclose
Mandatory grounds for disqualification applicable to appellate court justices are set
forth in canon 3E(5), which includes the disqualification requirement for justices who
have received a campaign contribution of $5,000 or more from a party in the matter
before the court. (Canon 3E(5)(j).)
In the circumstances here, the requesting trial court judge reports receiving
campaign contributions from several parties in the appellate matter, but all of those
contributions were in amounts lower than the $5,000 limit requiring appellate
disqualification. The judge also reports receiving a $7,000 contribution from a super

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PAC, which included contributions to the third party super PAC made by parties to the
appellate matter. Because this third party contribution was not made by “a party or
lawyer” in the appellate matter, the canon 3E(5)(j) limit requiring appellate
disqualification does not apply. None of these reported contributions would require the
judge to disqualify himself under the mandatory canon applicable to appellate justices.
Because appellate justices have no duty to disclose, the requesting trial court judge
would be under no obligation to disclose any of these contributions, which he would have
been required to disclose in a trial court proceeding as information reasonably relevant to
the question of disqualification. (Canons 3E(2)(a) & 3E(2)(b)(i); Advisory Com. com.
foll. canon 3E(2)(b); Code Civ. Proc. § 170.1, subd. (a)(9)(C).)
Similarly, the judge’s active membership in an organization devoted to the law, the
legal system, and the administration of justice would not require disqualification under
any canon or statute, but disclosure would be required in a trial court proceeding because
the organization is primarily made up of parties to the appellate matter, which is
reasonably relevant to the question of disqualification. In the appellate court proceeding
the judge has been invited to hear on assignment, however, the judge would have no duty
to disclose the circumstances of the membership. (CJEO Oral Advice Summary 2014-
005, Disqualification for Membership in an Amicus Curiae, Cal. Supreme Ct., Com. Jud.
Ethics Opns., p. 3 [a reasonable person would not doubt a justice’s ability to be impartial
in deciding the interests of the parties in circumstances where the justice was a member
of an organization that had filed an amicus brief].)
(c). Discretionary Decisions about Disqualification for the Appearance of
Impartiality
Discretionary grounds for disqualification applicable to appellate court justices are
set forth in canon 3E(4), which requires appellate justices to disqualify themselves when

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they believe recusal would further the interests of justice or when the circumstances are
such that a reasonable person aware of the facts might doubt impartiality. (Canon
3E(4)(a) & (c); CJEO Oral Advice Summary 2014-005, supra, Cal. Supreme Ct., Com.
Jud. Ethics Oral Adv. Sum. at p. 2.) In this case, the judge will not have a duty as an
appellate justice pro tempore to disclose the non-disqualifying party campaign
contributions, but those contributions would still be publically available in the judge’s
FPPC filings. The judge’s discretionary decision about disqualification must take into
consideration whether a reasonable person aware of those public records and the
campaign contributions from parties to the action, or any other circumstances related to
the judge’s campaign or memberships, would doubt impartiality.

This oral advice summary is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal.
Com. Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 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)).