CJEO Formal Opinion No. 2013-003•CJEO Formal Opinion No. 2013-003 — Disqualification Based on Judicial Campaign Contributions From a Lawyer in the Proceeding
CJEO Formal Opinion No. 2013-003 — Disqualification Based on Judicial Campaign Contributions From a Lawyer in the Proceeding
CJEO Formal Opinion No. 2013-003CalcjeoDec 11, 2013
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1 CALIFORNIA SUPREME COURT COMMITTEE ON JUDICIAL ETHICS OPINIONS 350 McAllister Street, Room 1144A San Francisco, CA 94102 (855) 854-5366 www.JudicialEthicsOpinions.ca.gov CJEO Formal Opinion No. 2013-003 [Issued December 11, 2013] DISQUALIFICATION BASED ON JUDICIAL CAMPAIGN CONTRIBUTIONS FROM A “LAWYER IN THE PROCEEDING” I. Questions Presented The statute governing disqualification of California trial court judges provides for mandatory disqualification if a judge has received a campaign contribution exceeding $1,500 from a party or lawyer in a proceeding (Code Civ. Proc., § 170.1, subd. (a)(9)(A)). 1 The Committee on Judicial Ethics Opinions (CJEO) has been asked to provide an opinion on two questions: 1. If several lawyers in the same private law firm or public law office individually contribute amounts of $1,500 or less, and if, when aggregated, the contributions exceed $1,500, is the judge disqualified from proceedings involving any lawyer from the firm or office? 1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
2 2. If a law firm contributes an amount greater than $1,500, is the judge disqualified from proceedings involving any lawyer from the firm? II. Summary It is the committee‟s opinion that disqualification is not mandated by section 170.1, subdivision (a)(9)(A) if a “lawyer in the proceeding” practices law with other lawyers who, collectively, have made campaign contributions exceeding $1,500 or when a “lawyer in the proceeding” practices in a private law firm which has made a campaign contribution that exceeds $1,500. In either circumstance, however, the judge must consider whether those aggregated or law firm contributions might nevertheless cause a reasonable person to doubt the judge‟s impartiality for purposes of discretionary disqualification, pursuant to section 170.1, subdivision (a)(6)(A) and (9)(B). III. Authorities A. Applicable Canon Provisions2 Canon 2B(1) Canon 3E(1) Canon 3E(2)(b)(i) Canon 3E(4) Canon 3E(5) B. Other Authorities Code of Civil Procedure, sections 170.1 and 170.5, subdivisions (b), (e) and (f). Government Code, section 84211, subdivision (f). Caperton v. A. T. Massey Coal Co., Inc. (2009) 556 U.S. 868. Apple Inc. v. Superior Court (2013) 56 Cal.4th 128. 2 All further references to canons and to advisory committee commentary are to the California Code of Judicial Ethics unless otherwise indicated. The full text of the canons cited in this opinion appear in the attached appendix A.
3 People v. Freeman (2010) 47 Cal.4th 993. Holmes v. Jones (2000) 83 Cal.App.4th 882. Rothman, California Judicial Conduct Handbook (3d ed. 2007) sections 7.16-7.17, pages 307-312 and appendix F, pages 1-2. IV. Discussion A. Introduction Section 170.1 sets forth the grounds for judicial disqualification in the trial courts. In 2010, the legislature added subdivision (a)(9) to the statute. This new provision provides for mandatory disqualification if a judge has received a campaign contribution in excess of $1,500 from a party or “lawyer in the proceeding.” (§ 170.1, subd. (a)(9)(A).) Disqualification is mandated for six years following the election for which the disqualifying contribution was received. (Ibid.) Since the enactment of this amendment, questions have arisen regarding the subdivision‟s application to aggregated campaign contributions from associated lawyers, and to contributions made by law firms. These questions arise because, while the subdivision on its face refers only to the contributions of a single “lawyer in the proceeding,” that term is defined in other provisions of the disqualification statute to include lawyers associated in the private practice of law. The committee has been asked to address these questions and provide guidance. Before responding to the question, however, we briefly review the historical context of—and impetus behind—the legislative amendment, which sheds light on the purpose of the statute. B. Background The legislative history of section 170., subdivision (a)(9) reflects two sources for paragraph (9). They are: (1) the United States Supreme Court decision in Caperton v. A. T. Massey Coal Co., Inc. (2009) 556 U.S. 868 [129 S. Ct. 2252] (Caperton), and (2) the final report of the California Judicial Council‟s Commission for Impartial Courts.
4 1. The Caperton Case In Caperton, a recently elected state supreme court justice refused to disqualify himself after receiving $3 million in campaign contributions from a party whose appeal from an adverse judgment would be heard by the supreme court. (Caperton, supra, 556 U.S. at pp. 873-874.) The timing of the contributions were such that, if elected, the justice would consider the party‟s appeal. Once elected, the justice denied repeated recusal motions on the grounds that he lacked actual bias. (Id., at pp. 881-883.) The United States Supreme Court found the justice‟s “probing search” into his subjective motives to be insufficient and held that an objective standard was required under the federal due process clause. (Id., at p. 865.) Applying this standard, the court concluded that the amount and timing of the contributions required recusal: “[T]here is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge‟s election campaign when the case was pending or imminent.” (Caperton, supra, 556 U.S. at p. 884.) Recognizing that “judicial integrity is a state interest of the highest order,” the United States Supreme Court acknowledged that states may adopt more stringent standards for disqualification than the objective standard imposed by the due process clause. (Caperton, supra, 556 U.S. at p. 889.) The legislative history of section 170.1, subdivision (a)(9) is replete with references to the Caperton case as a compelling reason for the adoption of more stringent standards requiring disqualification based on campaign contributions.3 3 (See Assem. Com. on Judiciary, analysis of Assem. Bill No. 2487 (2009-2010 Reg. Sess.) Apr. 27, 2010, pp. 4-5, 7, 12 [the stunning facts in Caperton are an egregious example of corruption in judicial elections]; Assem. Com. on Judiciary, 3d reading analysis of Assem. Bill No. 2487 (2009-2010 Reg. Sess.) May 4, 2010, p. 4 [Caperton exposed growing concerns about potentially corrupting effects of campaign contributions in judicial elections]; Sen. Judiciary Com., analysis of Assem. Bill No. 2487 (2009-2010 Reg. Sess.) May 4, 2010, pp. 2, 5-6 [Caperton is an example of increasingly expensive and partisan judicial elections]; Sen. Rules Com., Floor Analysis of Assem. Bill No. 2487
5 2. The CIC Final Report and Recommendations The Commission for Impartial Courts (CIC) was formed by the Judicial Council in 2007 to study ways to ensure judicial impartiality and accountability, particularly in the context of judicial elections. In 2009, the commission issued a final report containing, among other things, specific recommendations for legislation. The recommendations were based on an in-depth discussion of judicial campaign financing, including consideration of Caperton (Judicial Council of Cal., Com. for Impartial Courts: Final Report, Recommendations for Safeguarding Judicial Quality, Impartiality, and Accountability in Calif. (Dec. 2009) pp. 28-59 [CIC Final Report]). The CIC‟s recommendation proposed standards for disqualification based on both the amount and timing of campaign contributions in judicial elections. Specifically, the CIC recommended setting the threshold amount for mandatory disqualification of trial court judges at $1,500 and recommended setting the time period for disqualifications at two years. (CIC Final Report, supra, Recommendation 30, at pp. 34-35, endorsed by the Judicial Council, Feb. 26, 2010.) The recommended $1,500 threshold was based on the Legislature‟s adoption of this amount as defining a judge‟s financial interest in a party for purposes of disqualification in sections 170.1, subdivision (a)(3) and 170.5, subdivision (b). This sum was also based on a campaign disclosure database prepared by the Task Force on Judicial Campaign Finance, which showed that a relatively small number of individual contributions exceed $1,500. (CIC Final Report, supra, at p. 40, fn. 35.) The CIC therefore concluded that $1,500 struck the best balance between the competing values of maintaining public trust and confidence in impartial judicial decision making (2009-2010 Reg. Sess.) Aug. 2, 2010, p. 4 [Caperton exemplifies the considerable time often spent raising money in contested judicial elections]; Governor‟s Off. of Planning and Research, Legis. Unit, enrolled bill rep. on Assem. Bill No. 2487, Aug. 16, 2012, p. 4) [Caperton is a recent development exposing potential corruption in judicial elections].)
6 and allowing judicial candidates to engage in necessary fundraising.4 (CIC Final Report, supra, at p. 43.) Throughout the legislative process, the bill analyses consistently represented section 170.1, subdivision (a)(9)(A) as being based on, implementing, and encompassing the recommendation of the CIC.5 B. Statutory Language The question before us is whether disqualification is mandated by section 170.1, subdivision (a)(9) if a judge receives campaign contributions from associated lawyers who individually contribute $1,500 or less but whose combined contributions exceed $1,500. To answer that question “‟”our fundamental task is to „ascertain the intent of the 4 The CIC Final Report also discussed whether multiple contributions made by individuals affiliated with the same entity should be subject to mandatory disqualification. It concluded that “a judicial officer [should] disqualify himself or herself if he or she knows or reasonably should know that multiple individual contributions that would, in the aggregate, amount to the recommended threshold are all affiliated with the same entity.” (CIC Final Report, supra, at p. 41.) Notably, however, that comment is not based on the historical contributions data analyzed by the Task Force, nor was this expression of intent included in the CIC‟s recommendation for legislation setting explicit disqualification standards. Rather, the CIC recommended that: “Each trial court judge should be subject to mandatory disqualification from hearing any matter involving a party, counsel, party affiliate, or other interested party who has made a monetary contribution [in excess] of [$1,500] to the judge‟s campaign, directly or indirectly . . . .” (CIC Final Report, supra, at p. 34.) It is this recommendation that the Legislature relied upon. (Assem. Com. on Judiciary, 3rd reading analysis of Assem. Bill No. 2487, (2009-2010 Reg. Sess.) May 4, 2010, p. 5.) 5 (See Assem. Com. on Judiciary, analysis of Assem. Bill No. 2487 (2009-2010 Reg. Sess.) Apr. 27, 2010, p. 10 [bill seeks to implement CIC‟s recommendation of mandatory disqualification]; Assem. Com. on Judiciary, 3d reading analysis of Assem. Bill No. 2487 (2009-2010 Reg. Sess.) May 4, 2010, p. 5 [bill generally tracks CIC‟s recommendation of mandatory disqualification]; Sen. Judiciary Com., analysis of Assem. Bill No. 2487 (2009-2010 Reg. Sess.) June 29, 2010, p.6 [bill based on CIC Final Report]; Governor‟s Off. of Planning and Research, Legis. Unit, enrolled bill rep. on Assem. Bill No. 2487, Aug. 16, 2012, p. 3 [bill substantially encompasses CIC‟s recommendation to require mandatory disqualification for the specified level of contribution]. )
7 lawmakers so as to effectuate the purpose of the statute.‟”‟” (Apple Inc. v. Superior Court (2013) 56 Cal.4th 128, 135.) We must first examine the statutory text, giving the language its usual and ordinary meaning while construing the words “‟in light of the statute as a whole and the statute‟s purpose.‟” (Ibid.) Statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible. (Holmes v. Jones (2000) 83 Cal.App.4th 882, 888.) As has been described, section 170.1 was recently amended by the Legislature to add subdivision (a)(9). This new provision has four component parts related to campaign contributions: (A) mandatory disqualification; (B) discretionary disqualification; (C) disclosure; and (D) waiver. (§170.1, subd. (a)(9)(A)-(D).) Disqualification based on campaign contribution amounts is addressed in subparagraphs (A) and (B). Subparagraph (A) mandates disqualification if “the judge has received a contribution in excess of . . . $1,500 from a party or lawyer in the proceeding and either of the following applies: [¶] (i) The contribution was received in support of the judge‟s last election, if the last election was within the last six years [or] [¶] (ii) The contribution was received in anticipation of an upcoming election.” (§ 170.1, subd. (a)(9)(A).) Subparagraph (B) provides: “[n]otwithstanding subparagraph (A), the judge shall be disqualified based on a contribution of a lesser amount if subparagraph (A) of paragraph (6) applies.” (§ 170.1, subd. (a)(9)(B).)6 In other words, subparagraph (B) requires a judge to make his or her own decision about disqualification based on contributions of $1,500 or less if, for any reason, the judge believes the lesser contributions raise questions about impartiality. Significantly, neither subparagraph (A) nor (B) addresses aggregation: neither contains language providing that disqualification is required based on a combined sum of 6 Section 170.1, subdivision (a), subparagraph (6)(A) provides that a judge is disqualified if, “[f]or any reason: [¶] (i) [t]he judge believes his or her recusal would further the interests of justice[;] [¶] (ii) [t]he judge believes there is a substantial doubt as to his or her capacity to be impartial[; or] [¶] (iii) [a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (§ 170.1, subd. (a)(6)(A)(i)-(iii).)
8 contributions from lawyers practicing in the same firm or office. On its face subparagraph (A) applies only to a contribution exceeding $1,500 from “a…lawyer in the proceeding.” (§ 170.1, subd. (a)(9)(A).) The usual and ordinary meaning of that term refers to an individual lawyer appearing in the matter being heard. The subparagraph does not provide a definition of the term “lawyer in the proceeding” nor does it otherwise suggest the term was intended to include either lawyers with whom the appearing lawyer practices or the law firm in which the appearing lawyer practices. We must examine, however, whether the plain meaning of the subdivision‟s words should be construed differently in light of the statute as a whole. We therefore examine the term in its entire statutory context. The term “lawyer in the proceeding” appears in seven subparagraphs of section 170.1, subdivision (a). We quote them here, in context (italics added): (a) A judge shall be disqualified if any one or more of the following are true: *** (2) (A) The judge served as a lawyer in the proceeding, or in any other proceeding involving the same issues he or she served as a lawyer for a party in the present proceeding or gave advice to a party in the present proceeding upon a matter involved in the action or proceeding. (B) A judge shall be deemed to have served as a lawyer in the proceeding if within the past two years: (i) A party to the proceeding, or an officer, director, or trustee of a party, was a client of the judge when the judge was in the private practice of law or a client of a lawyer with whom the judge was associated in the private practice of law. (ii) A lawyer in the proceeding was associated in the private practice of law with the judge. (C) A judge who served as a lawyer for, or officer of, a public agency that is a party to the proceeding shall be deemed to have served as a lawyer in the proceeding if he or she personally advised or in any way represented the public agency concerning the factual or legal issues in the proceeding. ***
9 [A judge shall be disqualified if] (5) A lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge‟s spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding. *** [A judge shall be disqualified if] (6) (A) For any reason [the judge‟s impartiality is reasonably subject to doubt] …. (B) Bias or prejudice toward a lawyer in the proceeding may be grounds for disqualification. *** [A judge shall be disqualified if] (9) (A) The judge has received a contribution in excess of one thousand five hundred dollars ($1500) from a party or lawyer in the proceeding, and either of the following applies: (i) The contribution was received in support of the judge's last election, if the last election was within the last six years. (ii) The contribution was received in anticipation of an upcoming election. (§ 170.1, subd. (a).) Read together, these provisions show a cohesive pattern and harmonize the terms of the statute as a whole: The Legislature explicitly provided an expansive use of the term “lawyer in the proceeding” in two provisions, where it intended to refer to more than one lawyer, i.e., multiple lawyers associated in the private practice of law (§ 170.1, subd. (a)(2)(B)(i) , (ii)), and multiple family members or lawyers associated in the private practice of law with family members (§ 170.1, subd. (a)(5)). In another provision the statute provides that a judge is deemed to have served as a “lawyer in the proceeding” if he or she “personally advised or in any way represented the public agency concerning the factual or legal issues in the proceeding.” (§ 170.1, subd. (a)(2)(C).) The judge is thus also disqualified based upon the subject matter of his or her representation or advice provided to a public agency which is a party to the proceeding. In this provision the term “lawyer in the proceeding” is also in the singular form, and refers only to one individual
10 (the judge). In the two other subparagraphs of the statute using that term, the Legislature did not add any explanatory text or other language “deeming” the term “lawyer in the proceeding” to have a different or more expansive meaning. (§ 170.1, subd. (a)(6)(B), (9)(A).) From this we conclude the Legislature intended the plain meaning of the term “lawyer in the proceeding” -- i.e., a single lawyer-- to apply unless additional text expands or deems its meaning to be something broader than its plain meaning. This interpretation is echoed in the California Code of Judicial Ethics canons governing appellate disqualification (canon 3E). As has been noted, section 170.1 applies only to superior court judges. There are no statutory disqualification provisions for appellate justices. Canon 3(E)(4) and canon 3E(5)(a)-(f), however, restate the disqualification provisions of section 170.1 as ethical rules applicable to appellate justices. These canon provisions use the terms “lawyer in the proceeding,” “lawyer in the pending proceeding,” and “lawyer in a matter before the court” to refer to a single individual (Cal. Code Jud. Ethics, canon 3 (E)(5)(a), (e), (j)). When the canon provisions refer to multiple individuals, additional text is added, such as in the phrase “a lawyer in the proceeding [who] was associated with the justice in the private practice of law” (id., canon 3E(5)(b); see also canon 3E(5)(e)). Thus, the canon provisions applicable to appellate justices interpret the language of section 170.1 in a manner consistent with our understanding of the legislature‟s intent. Additionally, an interpretation that the provisions of section 170.1, subdivision (a)(2)(B) also apply to subdivision (a)(9)—that a “lawyer in the proceeding” includes lawyers associated in the private practice of law—could lead to absurd results in some cases. For example, because lawyers employed by the government and legal aid lawyers are excluded from the definition of “private practice of law” (Code Civ. Proc., § 170.5, subd. (e)), the aggregation requirement would not apply to any lawyer working for a district attorney‟s office. Consequently, aggregated contributions totaling $20,000 from 50 deputy district attorneys in a 90-lawyer office would not mandate disqualification from any of the district attorneys‟ cases but three checks totaling $1,501 from a 75- lawyer private firm would require disqualification from any case in which any of the
11 firm‟s 75 lawyers is involved. This is not a rational distinction with respect to the public‟s perception of a judge‟s bias, or lack thereof. In sum, it is the committee‟s opinion that the plain meaning of “lawyer in the proceeding” applies to section 170.1, subdivision (a)(9), and the Legislature did not intend the $1,500 threshold for disqualification to apply to aggregated contributions from multiple individuals from the same law firm, nor to all individuals practicing law in a contributing law firm. A judge receiving such contributions however, is also required to make a determination as to whether disqualification is called for under section 170.1, subdivision (a)(6)(iii) and (9)(B). (See Rothman, Cal. Judicial Conduct Handbook (3d ed. 1997) §§ 7.16-17, pp. 307-312, and append. F, pp. 1-2 .) Indeed, the objective standard in section 170.1, subdivision (a)(6)(iii) is an explicit ground for disqualification and is intended to ensure public confidence in the judiciary by requiring disqualification if a person aware of the facts would reasonably entertain doubts concerning a judge‟s impartiality (People v. Freeman (2010) 47 Cal.4th 993, 1000-1005, citing Caperton, supra, 556 U.S. at pp. 879-889.) The facts a person would need to be aware of under the objective standard are known both to the judge and the public. (Gov. Code § 84211(f); Code Civ. Proc., § 170.1, subd. (a)(9)(C).) The committee therefore concludes that mandatory disqualification for individual attorney contributions over the $1,500 threshold, together with discretionary disqualification for aggregated and law firm contributions, sufficiently ensures the public trust in an impartial and honorable judiciary. V. Conclusions Section 170.1, subdivision (a)(9)(A) does not mandate disqualification for aggregated contributions or law firm contributions in excess of $1,500. The disqualification statute as a whole uses the term “lawyer in the proceeding” in a consistent pattern that includes explicit text when deeming or using the term to include multiple individuals. When no such text is used in the statute, as is the case in subdivision (a)(9), the plain meaning of the term applies to the individual lawyer appearing in the matter.
12 Section 170.1 also provides that judges must evaluate all circumstances, including aggregated and law firm contributions, to determine whether the appearance of impartiality has been compromised, pursuant to subdivision (a))(6)(iii) and (9)(B). The statutory purpose of ensuring that campaign contributions do not influence judicial decision making or create the appearance of influencing judicial decision making is fully served by the combined requirements for mandatory and discretionary disqualification. This opinion is advisory only (Cal. Rules of Court, rules 9.80(a), (e); Cal. Com. Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rules 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)).
13 APPENDIX A California Code of Judicial Ethics Canons Cited in CJEO Formal Opinion No. 2013-03 Canon 2B(1): “A judge shall not allow family, social, political, or other relationships to influence the judge’s judicial conduct or judgment, nor shall a judge convey or permit others to convey the impression that any individual is in a special position to influence the judge.” Canon 3E(1): “A judge shall disqualify himself or herself in any proceeding in which disqualification is required by law.” Canon 3E(2): In all trial court proceedings, a judge shall disclose on the record as follows: . . . . (b) Campaign contributions in trial court elections. (i) Information required to be disclosed: In any matter before a judge who is or was a candidate for judicial office in a trial court election, the judge shall disclose any contribution or loan of $100 or more from a party, individual lawyer, or law office or firm in that matter as required by this canon, even if the amount of the contribution or loan would not require disqualification. Such disclosure shall consist of the name of the contributor or lender, the amount of each contribution or loan, the cumulative amount of the contributor’s contributions or lender’s loans, and the date(s) of each contribution or loan. The judge shall make reasonable efforts to obtain current information regarding contributions or loans received by his or her campaign and shall disclose the required information on the record. Canon 3E: (4) An appellate justice shall disqualify himself or herself in any proceeding if for any reason: . . . . (c) the circumstances are such that a reasonable person aware of the facts would doubt the justice’s ability to be impartial. Canon 3E(5): “Disqualification of an appellate justice is also required in the following instances: (a) The appellate justice has appeared or otherwise served as a lawyer in the pending proceeding, or has appeared or served as a lawyer in any other proceeding involving any of the same parties if that other proceeding related to the same contested issues of fact and law as the present proceeding, or has given advice to any party in the present proceeding upon any issue involved in the proceeding.
14 (b) Within the last two years, (i) a party to the proceeding, or an officer, director or trustee thereof, either was a client of the justice when the justice was engaged in the private practice of law or was a client of a lawyer with whom the justice was associated in the private practice of law; or (ii) a lawyer in the proceeding was associated with the justice in the private practice of law. (c) The appellate justice represented a public officer or entity and personally advised or in any way represented such officer or entity concerning the factual or legal issues in the present proceeding in which the public officer or entity now appears. . . . (e) The justice or his or her spouse or registered domestic partner, or a person within the third degree of relationship to either of them, or the spouse or registered domestic partner thereof, is a party or an officer, director, or trustee of a party to the proceeding, or a lawyer or spouse or registered domestic partner of a lawyer in the proceeding is the spouse, registered domestic partner, former spouse, former registered domestic partner, child, sibling, or parent of the justice or of the justice’s spouse or registered domestic partner, or such a person is associated in the private practice of law with a lawyer in the proceeding. (f) The justice . . . (iii) has a personal bias or prejudice concerning a party or a party’s lawyer. . . . (j) The justice has received a campaign contribution of $5,000 or more from a party or lawyer in a matter that is before the court, and either of the following applies: (i) The contribution was received in support of the justice’s last election, if the last election was within the last six years; or (ii) The contribution was received in anticipation of an upcoming election. Notwithstanding Canon 3E(5)(j), a justice shall be disqualified based on a contribution of a lesser amount if required by Canon 3E(4). The disqualification required under Canon 3E(5)(j) may be waived if all parties that did not make the contribution agree to waive the disqualification.”
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