Friday, March 7, 2014

By the Power Vested in Me by the State of California, I Pronouce You Not Disqualified

Wechsler v. Superior Court, No. D064919 (D4d1 Mar. 3, 2014)

A court commissioner presiding over post-judgment proceedings in a divorce case agreed to preside at the wedding of the wife’s lawyer while the matter was pending. Husband moved to disqualify the commissioner under Code of Civil Procedure § 170.1(a)(6)(A)(iii), which requires disqualification of a judicial officer when “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” Under the court’s procedures, the motion was referred to a superior court judge, who denied the motion. Husband took a writ. 


Relying on a death penalty case addressing a similar judge/wedding issue People v. Carter, 36 Cal. 4th 1215, 1240–1244 (2005)the court holds that a judge’s officiating at the wedding of a lawyer does not, in itself, merit recusal under the appearance of bias standard. Judges perform a public function in presiding over weddings, and an objective lay observer would not necessarily conclude that the judge was biased based on the judge’s role in solemnizing the ceremony, particularly when, as here, there was record evidence that the judge and the attorney did not otherwise have a close personal or social relationship. Although there could be facts that would merit a different result—such as evidence of actual close personal ties between lawyer and judge, the judge’s acceptance a gratuity, or his or her attending the wedding reception—these were not present in this case. So a reasonable observer would not find an appearance of bias based on the officiating alone. The court goes on to note, however, (in dicta) that presiding at an appearing attorney’s wedding presents enough potential for an appearance of impropriety that the judicial canons require the judge to disclose the fact. But that did not merit recusal in this case because it was clear that husband’s attorney knew.

Writ denied.

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