Who Killed the Samurai?

Hayward v. Superior Court, No. A144823 (D1d2 Aug. 3, 2016)

This case—a contentious divorce—is pretty ugly. The parties stipulated to have the case resolved by a private judge, appointed by the family court as a Pro Tem. But things go downhill from there.


In Pro Tem’s private practice she had previously used both Husband’s and Wife’s attorneys as private judges. But Pro Tem failed to make a written disclosure of the cross-pro-temming, as is required under the relevant Canons of Judicial Conduct. She apparently told the lawyers orally at an informal, off the record, status conference. 

At this point, like only a divorce case could, things descend into a tale whose villain depends on whether you read the majority or the dissent. Wife switches lawyers about a million times, and the old ones didn’t tell the new ones about the oral disclosure. Pro Tem issues some rulings that seem (at least from the opinion’s description of them) awfully favorable to husband. But maybe that’s because Wife and her lawyers are themselves pretty awful and doing shady stuff (if you read the dissent’s characterization). Or maybe not. Pro Tem ultimately gets DQed. The newly reassigned family law judge orders a bunch of meddlesome discovery, including a potential privilege waiver. Discovery gets stayed by writ. The ex-Pro Tem files dec relief to get paid. And then the whole shebang gets fully stayed while the Court of Appeal plays Who Killed the Samurai?

The majority faults the Pro Tem, upholds the DQ and ultimately holds that her failure to make the proper disclosure meant that her orders were void, along with a settlement agreement that was entered while the Pro Tem was proceeding in the case. Although the sixty-page opinion gets into all kinds of facts and resolves any number of legal issues, the significant one procedurally-speaking addresses the operation of Code of Civil Procedure § 170.3.

We don’t see much all that much recusal litigation in California. The option to file an “affidavit of prejudice” under § 170.6 and automatically strike the assigned judge at the beginning of a case serves as a bit of a safety valve. But recusal motions do occur. The § 170.3 procedure that governs recusal motion is a little unusual—almost like a mini writ—and compliance with it is at the crux of the dispute between the majority and Justice Richman’s dissent.

Subsection (a) of § 170.3 addresses how a judge who determines he or she is disqualified—the actual DQ standards are in § 170.1—goes about giving notice of that fact. Subsection (b) addresses the judge’s option to un-coercively ask the parties if they want to waive the DQ, as well as circumstances where no waiver is possible. And then subsection (c) deals with the procedure for when a disqualification is requested by one of the parties.

The process starts off with a party filing a “written verified statement objecting to the hearing or trial before the judge and setting forth the facts constituting the grounds for disqualification of the judge,” often called a “statement of disqualification.” It needs to be filed at “the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”

That then puts the onus on the judge to respond. There are several options. Under (c)(2), the judge can request that the parties mutually agree to some other judge who will hear the matter. Under (c)(3), within ten days, she can file either a consent to the disqualification or a verified written answer setting for the facts as to why a DQ isn’t appropriate. And if the judge doesn’t timely respond at all, under (c)(4), her failure to do so is deemed a consent.

If there is a dispute, subsection (c)(5) deals with who adjudicates the question: not the assigned judge, but instead either a judge who the parites agree to, or one assigned by the chair of the Judicial Council. And then (c)(6) says the recusal judge can determine the issue on the papers or order a hearing, in which evidence can be taken. Finally, once a decision is made, under (d) that decision isn’t appealable, but can only be reviewed by a writ taken within ten days of the decision.

At the risk of oversimplifying somewhat, the dispute here concerns the manner in which the DQ issue was brought before the court and Pro Tem’s response. Wife didn’t file something called an “Affidavit of Prejudice.” She filed a “Motion to Disqualify,” alleging both the failure to disclose the prior private judging as well as substantive bias in the Pro Tem’s decisions. It was, however, supported by an under oath declaration, which is not substantially different than a verified petition.

And then the Pro Tem responded by writing a letter to the presiding judge, who was dealing with the recusal. In it she tried to explain the lack of disclosure. But she in any event requested recusal, claiming that she was scared of Wife and feared for her personal safety. This is the big rub in the case. If the Pro Tem’s response conceded grounds for recusal, because those grounds go back to the beginning of the case, here orders are void under § 170.4, which provides the only circumstances in which a recused judge can validly rule. On the other hand, if it was merely a resignation in the face of out-of-control parties, that wouldn’t be the case.

The majority (Presiding Justice Kline, joined by Justice Stewart) finds that the Pro Tem’s letter to the Napa County PJ didn’t satisfy 170.3(c)(3)’s requirements for an answer because it wasn’t given under oath. That being the case, her failure to give an appropriately verified response was deemed an admission of grounds for disqualification under (c)(4). And if that’s right, her DQ calls into question the orders she issued as well as the settlement that was arguably coerced on the basis of those orders.

The dissent, on the other hand, thinks it’s unfair to treat the Pro Tem’s letter as effectively a default, particularly since she didn’t have access to the kinds of judicial education about how to deal with these kinds of things that are provided to appointed superior court judges. If the letter needed to be under oath, the PJ should have told Pro Tem to fix the issue. And since the issue was clearly fix-able, there shouldn’t have been any finding that the DQ was proper. The matter instead should have been treated as a resignation, which would not call into question any of the pro tem’s orders.

At the heart of the dispute is a difference in perspective about private judging in general. In state court practice, private judging—which occupies a bit of a grey area between real court and arbitration—is most common in specialized areas where the depth of experience in the bar is often much greater than that of the average superior court judge who gets assigned to a matter. Complex family law cases often fit the bill pretty well because: (1) family law can be complicated, non-intuitive, and highly specialized; (2) very few superior court judges come from family law backgrounds; (3) family court tends to be a Superior Court “rookie judge” assignment—a rotation to be endured before moving on to more interesting and prestigious civil or criminal assignments—very few state judges endeavor to “end up” in family court; and thus (4) in most courts, by the time a family law judge gets the hang of the practice, she’s up to rotate into greener pastures. Under those circumstances, attorneys representing a husband and wife in a complicated divorce case might well find it more efficient and predicable to submit to the decision of a fellow experienced family law practitioner, instead of some recently-appointed former DA marking time to get a better assignment from the chief.

The majority recognizes this fact, but notes that it nonetheless gives rise to some potentially fraught conflicts that don’t apply to real judges, because the interests in mutually getting along to go along might get in the way of zealous client advocacy and the ability to serve as an impartial private judge. This might be particularly true of a specialized law bar in a smaller jurisdiction, perhaps like the family law bar in Napa, where the lawyers are all part of a close-knit community.

On the other hand, Justice Richman believes that the majority is mousetrapping the Pro Tem on a hyper-technicality out of an inherent distrust of private judging. He also believes that the oral disclosure of the cross-Pro-Temming to Wife’s original lawyer was sufficient to satisfy the disclosure canon, that Wife waived the DQ by submitting to the jurisdiction of the Pro Tem after her attorneys (at least) were aware of the potential conflict, and that by failing to raise the issue once her attorneys were on notice, she did not seek DQ at “the earliest practicable opportunity,” and thus her motion was also untimely.

Mostly affirmed.