CJEO Oral Advice Summary No. 2017-021 — Disqualification for Acquaintance with Leaders of an Amicus Curiae

1
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 2017-021
[Issued November 2, 2017]
DISQUALIFICATION FOR ACQUAINTANCE WITH LEADERS OF AN
AMICUS CURIAE
I. Question
Does an appellate justice have disqualification obligations when the justice is an
acquaintance of leading members of associations that have filed an amicus curiae brief in
a matter being heard by the justice?
The question is asked by an appellate justice hearing an appeal in which an amicus
curiae brief was filed on behalf of multiple associations. The justice is not a member of
any association but was acquainted with leaders of the associations through professional
activities approximately four to five years before becoming a judicial officer. The

2
justice’s acquaintance with the leaders was limited to greetings at events and an
occasional lunch but nothing more personal and nothing within the last 2 years.
II. Oral Advice Provided
The justice has discretion to decline to disqualify. The Code of Judicial Ethics
obligates an appellate justice to make a discretionary decision to disqualify if the
circumstances are such that a reasonable person aware of the facts would doubt the
justice’s ability to be impartial. (Cal. Code Jud. Ethics, canon 3E(4)(c).)
In appellate proceedings, an amicus curiae is not a party to the action, but rather a
person or entity that applies for permission to file a brief to assist the court in deciding
the matter. (Cal. Rules of Court, rule 8.200(c); In re Veterans' Industries, Inc. (1970) 8
Cal. App. 3d 902, 916 [not being a party to the action, an amicus curiae has limited
powers and no right to appeal where its views are ignored].) Thus, the committee
concluded in CJEO Oral Advice Summary 2014-005 that a reasonable person would not
doubt a justice’s ability to be impartial in deciding the interests of the parties in
circumstances where the justice was a member of an organization that had filed an
amicus brief. (CJEO Oral Advice Summary 2014-005, Disqualification for Membership
in an Amicus Curiae, Cal. Supreme Ct., Com. Jud. Ethics Opns., p. 3.)
A similar conclusion applies in the circumstances of a justice’s acquaintance with
members or leaders of an association that has filed an amicus curiae brief. (Rothman,
Cal. Judicial Conduct Handbook (3d ed. 2007) § 7.51, p. 356 [disqualification not
required for mere acquaintanceship, but moves closer to being required for social
relationships within the inner circle of the judge’s intimate friends].) Here, greetings at
events and lunches that occurred over two years ago with individuals the justice knew

3
professionally before taking the bench are not social relationships that would otherwise
cause reasonable doubt as to impartiality.
The committee advises that the justice may decline to disqualify. Because appellate
justices are not obligated to make disclosures, the justice also has the discretion to decide
whether or not to disclose the acquaintance with amicus leaders. (Rothman, supra, § 7.73,
p. 382, § 7.90, p. 389).

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
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)).