CJEO Oral Advice Summary No. 2016-016 — Disqualification of a Pro Tem Appellate Justice Under Active Consideration

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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 Oral Advice Summary No. 2016-016
[Posted April 28, 2016]
DISQUALIFICATION OF A PRO TEM APPELLATE JUSTICE UNDER
ACTIVE CONSIDERATION
I. Question:
Does a superior court judge who is sitting as a pro tem appellate justice while under
active consideration1 by the Governor for appointment to the Court of Appeal have
disqualification obligations in a habeas corpus matter in which the Governor’s decision to
affirm, modify, or reverse the parole board is at issue?
1 “Active consideration” indicates that either the Commission on Judicial Nominees
Evaluation of the State Bar of California is evaluating the superior court judge for
appointment to an appellate court at the request of the Governor, or that the Governor or
the Governor’s staff is engaging in direct conversations with the superior court judge
regarding appointment to an appellate court.

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II. Oral Advice Provided:
The committee recommends that a superior court judge sitting as a pro tem appellate
justice while under active consideration by the Governor for appointment to the Court of
Appeal disqualify himself or herself when asked to decide a habeas corpus matter in
which the Governor’s decision to affirm, modify, or reverse the parole board is at issue.
The Governor makes appointments and nominations to the Court of Appeal pursuant
to article VI, section 16(d)(1) and (2) of the California Constitution. In addition, article
V, section 8 provides that “[n]o decision of the parole authority of this state with respect
to the granting, denial, revocation, or suspension of parole of a person sentenced to an
indeterminate term upon conviction of murder shall become effective for a period of 30
days, during which the Governor may review the decision subject to procedures provided
by statute.” (Cal. Const., art. V, § 8.)
In the California Judicial Conduct Handbook, Judge Rothman observes that “[t]he
pressures on judicial independence are significant where political considerations play a
part in the appointment, election, or elevation of judges,” and that “[t]he need to ‘please’
the electorate or appointing authority can pervert judicial integrity and courage.”
(Rothman, Cal. Judicial Conduct Handbook (2013 supp.) § 3.46, p. 143.) Moreover,
canon 3E(4) requires a pro tem appellate justice under active consideration by the
Governor for appointment to the Court of Appeal to disqualify himself or herself from a
habeas corpus matter in which the Governor’s decision to affirm, modify, or reverse the
parole board is at issue if “his or her recusal would further the interests of justice,” or if
he or she “substantially doubts his or her capacity to be impartial.” (Canon 3E(4)(a), (b).)
In addition, disqualification is required if the “circumstances are such that a reasonable
person aware of the facts would doubt the justice’s ability to be impartial.” (Canon
3E(4)(c).)

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“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 [internal citations and quotations omitted].)
“[L]itigants' necessarily partisan views [should] not provide the applicable frame of
reference.” (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d
97, 104.) Instead, “‘a judge faced with a potential ground for disqualification ought to
consider how his participation in a given case looks to the average person on the street.’”
(Ibid.)
In light of the Governor’s constitutional authority to review personally all decisions
of the parole board granting, denying, revoking, or suspending parole, and in light of the
substantial interest a judicial officer under active consideration for permanent elevation to
an appellate court may have in maintaining the Governor’s favor during service as a pro
tem appellate justice, a reasonable person aware of the facts would likely doubt the
justice’s ability to be impartial. (See Judicial Conference of U.S., Guide to Judicial
Policy, Vol. 2B, Ch. 2, Com. on Codes of Conduct Advisory Opn. No. 97 (June 2009) p.
169 [recognizing that “[a]n incumbent [magistrate judge] seeking reappointment
obviously has a substantial interest in receiving a favorable recommendation from [a
reappointment] panel,” and advising recusal when a member of the reappointment panel
appears before that magistrate judge because “during the period of time that the panel is
evaluating the incumbent and considering what recommendation to make concerning
reappointment, a perception would be created in reasonable minds that the magistrate
judge’s ability to carry out judicial responsibilities with impartiality is impaired.”]).
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This oral advice summary is advisory only (Cal. Rules of Court, rule 9.80(a), (e); Cal.
Com. Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rule 1(a), (b)). It is based on

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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)).