As the legal community tests the waters with in-person trials after the Covid lockdowns, pro tem judges may continue to be an attractive option. Like private arbitration, pro tem judges offer more flexibility and availability than Superior Court judges. And contrary to arbitration, parties electing to use a pro tem judge preserve their right to appeal.
Angelina Jolie and Brad Pitt went the route of hiring a pro tem judge for their family law case. After years of litigating child custody issues (one child is now 18), Jolie discovered their pro tem judge was working on more cases with Pitt's attorneys than previously disclosed. Getting the feeling she was the third wheel in the courtroom, Jolie filed a statement of disqualification.
Although the Superior Court rejected Jolie's objection, in a published opinion in Jolie v. Superior Court of Los Angeles (D2d7 Jul. 23, 2021) no. B308958, the Court of Appeal granted Jolie's writ petition. The pro tem judge had failed to disclose all of his appointments on Pitt's lawyers' cases, and the judge's work on those cases, in context with his failure to timely disclose it, created the appearance of impropriety requiring disqualification.
Justice Segal wrote a concurring opinion forcefully calling the Judicial Council to end the practice of allowing pro tem judges to accept private payment, noting that, until 30 years ago, it was not only disallowed, it was criminal: "But just because it is no longer criminal for a temporary judge to receive compensation from private parties doesn't mean it's a good idea."
Jolie OKs the Pro Tem Judge's Original Disclosures, But Subsequent Belated Disclosures Prompt Jolie to Object:
Jolie and Pitt selected Judge John W. Ouderkirk (Ret.) for their case. (Judge Ouderkirk presided over the Reginald Denny trial in 1993.) Judge Ouderkirk disclosed his involvement on some other cases that also happened to involve Pitt's attorneys. Jolie did not object. In fact, the parties both agreed to extend Judge Ouderkirk's appointment. Judge Ouderkirk made disclosures of other cases he was working, including where Pitt's attorneys were involved as counsel, and even noting the possibility he may take future cases that "might involve a party, lawyer, law firm and/or witnesses involved in the Jolie/Pitt matter." This apparently was ok by Jolie in 2018, who agreed to extend Judge Ouderkirk's appointment again in both 2018 and 2019.
Apparently unhappy with Judge Ouderkirk's 2019 custody ruling, Jolie requested additional disclosures. It turned out that Judge Ouderkirk had taken two new matters in which Pitt's attorneys were counsel of record. Worse, Judge Ouderkirk apparently had overlooked a 2017 case in his prior disclosures that also involved Pitt's counsel.
Jolie filed a statement of disqualification, and the Judicial Council appointed Orange County Superior Court Judge Larsh to the matter. Judge Larsh denied disqualification, finding Jolie's statement untimely, as the recent disclosures "did not substantially change from the 2018 disclosures."
Jolie filed her petition for a writ of mandate in the Court of Appeal four days later. Under Code of Civil Procedure section 170.3(d), review of an order denying disqualification of a judge “may be reviewed only by a writ of mandate from the appropriate court of appeal.”
About three weeks later, the Court of Appeal issued an order to show cause why Jolie's relief should not be granted. (But curiously, the court denied Jolie's request for a stay of further proceedings before Judge Ouderkirk in the meantime. The opinion notes "an extended evidentiary hearing" proceeded before Judge Ouderkirk after the OSC issued. Apparently this was wasted effort that would have been avoided by the issuance of a stay.)
Legal Standard for Judicial Disqualification:
Pro tem judges are authorized under article VI, section 21 of the California Constitution. But pursuant to judicial canon 6(D)(3)(a)(vii)(C), a temporary judge must “from the time of notice and acceptance of appointment until termination of the appointment,” disqualify himself or herself if, for any reason, “a person aware of the facts might reasonably entertain a doubt that the temporary judge would be able to be impartial.” Likewise, canon 6(D)(5)(a) requires the temporary judge to disclose in writing any information relevant to canon 6(D)(5)(a), including "personal or professional relationships known to the temporary judge...with the party, lawyer, or law firm in the current proceeding."
When do the disclosures have to be made? California Rules of Court rule 2.831(d) requires that matters subject to disclosure to the parties under the Code of Judicial Ethics must be disclosed no later than five days after designation as a temporary judge or, as to matters not known at the time of designation, “as soon as practicable thereafter.”
But the failure to timely disclose does not create an automatic disqualification. Instead, under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii) (and for pro tem judges, canon 6D(3)(a)(vii)(C)), the judge must be disqualified if “[a] person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.”
Standard of Review for Judicial Disqualification Is De Novo:
Rejecting Pitt's argument that disqualification is reviewed for abuse of discretion, the Second District Court of Appeal noted that the Supreme Court in Haworth v. Superior Court (2010) 50 Cal.4th 372, 389 (Haworth) had not decided that question, but that in the context of private contractual arbitration involving failure to disclose, the standard was de novo. (Haworth, supra, 50 Cal.4th at p. 383. See Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 391-392 [“[t]he weight of authority supports that where, as here, the relevant facts are undisputed, a de novo review standard applies to a section 170.1(a)(6)(A)(iii) challenge to a claimed appearance of partiality”].)
The Temporary Judge's Untimely Disclosures Mandated Disqualification:
The court held that Jolie's statement of disqualification was not untimely. Delay in seeking to disqualify a judge “constitutes forfeiture or an implied waiver of the disqualification.” (Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332, 1337.) But “[a] party cannot waive a right she does not know she has.” (Honeycutt v. JPMorgan Chase Bank, N.A. (2018) 25 Cal.App.5th 909, 931 (Honeycutt).)
The Superior Court had noted Jolie was on notice of Judge Ouderkirk's "significant history" of serving on cases in which Pitt's attorneys were counsel of record. "True," the Court of Appeal notes, "but history is different from current events." Only recently had Jolie learned that Judge Ouderkirk had been engaged for two new matters, and Jolie only learned it because she asked – Judge Ouderkirk had failed to comply with his automatic disclosure duty.
Judge Ouderkirk blamed his assistants for failing to disclose. But that excuse doesn't work for attorneys, and it doesn't work for judges, either. "No more than an attorney can excuse his or her misconduct by blaming an assistant, Judge Ouderkirk must accept responsibility for the ethical violation that occurred here. (See canon 6D(2)(a) [a temporary judge must comply with canon 3C(1) requiring the discharge of administrative responsibilities without bias and with competence]; cf. Layton v. State Bar (1990) 50 Cal.3d 889, 900 [an attorney cannot escape responsibility for his breach of ethics by blaming his secretary]; Honeycutt, supra, 25 Cal.App.5th at p. 929, fn. 12.)"
As to disqualification, the court held that disqualification was required under section 170.1(a)(6)(A)(iii) and canon 6D(3)(a)(vii)(C). The circumstances relevant here were: (1) the temporary judge failed to voluntarily disclose new professional relationships; (2) those professional relationships "renew[ed] and expand[ed] the prior relationships; and (3) Jolie had a new attorney, who had no other professional relationships with the temporary judge. "When coupled with Judge Ouderkirk's breach of his ethical obligation to timely disclose the new professional relationships in 2019 and 2020, the broad standard of those provisions—“might reasonably entertain a doubt”—has certainly been satisfied."
Of significance was the fact that Jolie had a new attorney: "we do not believe it is irrelevant that Jolie is now represented by someone who is not a repeat-player in Judge Ouderkirk's court....That only one side in a case is represented by counsel who regularly uses the services of a privately compensated judge is one of the facts of which the hypothetical reasonable person would be aware in assessing whether that judge appears to be biased."
Concurring, Justice Segal Calls to End Privately-Paid Judging:
Justice Segal begins his pointed concurrence this way:
"I agree entirely with the opinion of the court. I write separately to express my concern that the following three propositions are currently the law in California: (1) Temporary judges are judges; (2) Judges cannot be privately compensated; (3) Temporary judges can be privately compensated. One of these statements must be wrong. I believe it is (3)."
Justice Segal goes on to remind the reader that, until just 1992, privately paid judging was not only not permitted, it was criminal. Some excerpts:
"when the Judicial Council proposed rules that recognized such a thing as a “privately compensated temporary judge,” several sitting judges responded with comments. Judge Robert H. O'Brien of the Los Angeles County Superior Court wrote that “joint operation” of the court “with private enterprise is an improper commingling of the [judicial] branch of government with private judging associations or individual private judges.”"
"Judge James T. Ford of the Sacramento County Superior Court wrote that privately compensating temporary judging was probably criminal."
"Judge Ford wrote: “While clearly not adopted with this recent phenomenon in mind, the Code stands for an important principle: justice and money do not mix. Judging is not in any way a private function; it is a quintessential public function, and should be administered without regard to compensation of the judge.”... “I urge the judiciary to recognize that privately compensating judges pro tempore is illegal and pernicious. We are not for sale, nor is the product of our labor.” (1992 Judicial Council Report, pp. 4, 25, 27, letter from Judge James T. Ford, Aug. 20, 1992.)"
"But just because it is no longer criminal for a temporary judge to receive compensation from private parties doesn't mean it's a good idea. The Legislature directed the Judicial Council to prescribe rules governing compensation of temporary judges. I believe the Judicial Council should adopt the rule its ad hoc committee recommended in 1993: Temporary judges may be paid by the court, but may not be privately compensated except when serving as court-appointed referees. The Judicial Council created the term “privately compensated temporary judge,” or at least approved the concept. In my view, it is time for the Judicial Council to reconsider that decision."
Watch this space.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at firstname.lastname@example.org or (714) 641-1232.