CJEO Oral Advice Summary No. 2020-035 — Appellate Disqualification for Prior Peremptory Challenge as a Trial Judge in the Matter

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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 2020-035
[Issued June 2, 2020]
APPELLATE DISQUALIFICATION FOR PRIOR PEREMPTORY
CHALLENGE AS A TRIAL JUDGE IN THE MATTER
I. Question:
An appellate justice requests advice about disqualification obligations in a matter
in which the justice had been the subject of a peremptory challenge as a trial court judge.
Is a peremptory challenge below a ground to disqualify an appellate justice from hearing
the matter on appeal?
II. Oral Advice Provided:
Yes, a peremptory challenge that removed a judge below is a ground for
disqualification, when that judge becomes an appellate justice and the matter is assigned
to the appellate justice for review.

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Applying canon 3E(4)(c) of the California Code of Judicial Ethics,1 the committee
advises that a justice who was disqualified as a trial judge by peremptory challenge
should reach the determination that a reasonable person would doubt impartiality and
disqualify from the panel hearing the matter. A peremptory challenge is meant to end a
judge’s involvement in a case. Public confidence in the judiciary’s impartiality comes, in
part, by giving great weight to a litigant’s stated belief of bias made under oath. While
the peremptory challenge did not, and does not, disqualify an appellate justice, a justice's
obligation to consider the objective appearance of impartiality should.
III. Discussion:
Disqualification for trial court judges is set by statutes. (Code Civ. Proc., §§ 170
et. seq., 170.1, 170.6.) A peremptory challenge does not disqualify an appellate justice.
(§ 170.6, subd. (a); Rothman et al., Cal. Judicial Conduct Handbook (4th ed. 2017) §
7:10, p. 404 (Rothman) [statutory language specifying application to superior court
judges precludes application to appellate justices].)
Disqualification for appellate justices is a decision made by each justice alone,
under grounds set by canon. (Canon 3E(1), (3), (4) & (5); Kaufman v. Court of Appeal
(1982) 31 Cal.3d 933, 935, 938-940 [statutory grounds for trial court disqualification are
not applicable to appellate justices].) Canon 3E(4)(c) requires disqualification when
circumstances are “such that a reasonable person aware of the facts would doubt the
justice’s ability to be impartial.”
The application of the reasonable doubt standard uses an objective test; the
perspective is of the “‘average person on the street.’” (United Farm Workers v. Superior
Court (1985) 170 Cal.App.3d 97, 105 [the reasonable person standard does not require
1 All further references to canons are to the Code of Judicial Ethics. All
further references to statutes are to the Code of Civil Procedure unless otherwise
indicated.

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proof of actual bias, the objective test ensures that proceedings appear to the public to be
impartial, and hence worthy of public confidence].) “‘The “reasonable person” is not
someone who is “hypersensitive or unduly suspicious,” but rather is a “well-informed,
thoughtful observer.”’” (Haworth v. Superior Court (2010) 50 Cal.4th 372, 389.)
Although section 170.6 does not apply to appellate justices, several characteristics
of peremptory challenges should inform the justice’s decision about whether the lower
court disqualification would suggest to a reasonable person that the justice might not be
impartial.
Section 170.6 “‘guaranteed to litigants an extraordinary right to disqualify a
judge.’” (Solberg v. Superior Court of San Francisco (1977) 19 Cal.3d 182, 193.) A
party’s sworn affidavit of a belief of bias filed under section 170.6 does not create a
presumption of prejudice; rather, it provides disqualification on a separate ground,
because “actual prejudice is not a prerequisite to invoking the statute.” (Ibid.) The
statute was specifically enacted to ensure “confidence in the judiciary and avoid the
suspicion” of unfairness that occurs when a party believes a judge to be biased. (Johnson
v. Superior Court (1958) 50 Cal.2d 693, 697.) As the Supreme Court observed in Maas
v. Superior Court (2016) 1 Cal.5th 962, 973, section 170.6 should be liberally construed
in favor of peremptory challenges. Like all disqualification grounds applicable to a trial
court, a peremptory challenge is irrevocable, and its effect may outlast the challenging
party’s own interest in the case. (Louisiana-Pacific Corp v. Philo Lumber Co. (1985)
163 Cal.App.3d 1212, 1219, 1217.)
In addition to these strong policy considerations, canon 3B(7)(a) prohibits a judge
from discussing a matter with any judge “who has previously been disqualified from
hearing that case,” and prohibits a judge who knows “he or she is or would be
disqualified” from discussing the matter with another judge assigned to the case. The ban
on discussions between a judge on a case and a disqualified judge is also aimed at
promoting the “public confidence in the integrity and impartiality of the judiciary.”

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(Rothman, supra, § 7:5, at p. 399 [that judge’s discussion with disqualified judge was
inadvertent was irrelevant because violation of canon 3B(7)(a) undermines public
confidence in the judiciary].)
Considering all applicable circumstances objectively, it is unlikely that an average
person would think it fair that a judge who had irrevocably lost power in a matter could
reclaim that same power by accepting a new judicial position. Likewise, a judge
removed by a party's subjective belief of bias, who is the same individual later assigned
to sit in review on the same case and who fails to disqualify, may cause an average
person to doubt that judicial officer’s ability to be impartial.

This oral advice summary is advisory only. (Cal. Rules of Court, rule 9.80(a), (e);
Cal. Supreme Ct. Com. Jud. Ethics Opns. (CJEO), Internal Operating Rules & Proc. 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)). The conclusions
expressed in this summary are those of the committee and do not necessarily reflect the
views of the California Supreme Court or any other entity. (Cal. Rules of Court, rule
9.80(b); CJEO rule 1(a)).)