Disqualification of Judges in California

California’s Code of Civil Procedure (CCP) provides the basis for the disqualification of judges. These provisions of law are found in Chapter 3 of Title 2 of Part 1. CCP Section 170 specifies that a judge has a duty to decide any proceeding in which he or she is not disqualified.

CCP Section 170.1 requires a judge to be disqualified if any of the following are true:

• The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.

• The judge served as a lawyer in the proceeding, or in any other proceeding involving the same issues he or she served as a lawyer for a party in the present proceeding or gave advice to a party in the present proceeding upon a matter involved in the action or proceeding.

• The judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding.

• The judge, or the spouse of the judge, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding or an officer, director, or trustee of a party.

• A lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge’s spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding.

• For any reason: The judge believes his or her recusal would further the interests of justice. The judge believes there is a substantial doubt as to his or her capacity to be impartial. A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.

• By reason of permanent or temporary physical impairment, the judge is unable to properly perceive the evidence or is unable to properly conduct the proceeding.

• The judge has a current arrangement concerning prospective employment or other compensated service as a dispute resolution neutral or is participating in, or, within the last two years has participated in, discussions regarding prospective employment or service as a dispute resolution neutral, or has been engaged in that employment or service.

• The judge has received a contribution in excess of $1500 from a party or lawyer in the proceeding.

• A judge before whom a proceeding was tried or heard shall be disqualified from participating in any appellate review of that proceeding.

CCP Section 170.2 provides that it is not a ground for disqualification that the judge:

• Is or is not a member of a racial, ethnic, religious, sexual or similar group and the proceeding involves the rights of such a group.

• Has in any capacity expressed a view on a legal or factual issue presented in the proceeding.

• Has as a lawyer or public official participated in the drafting of laws or in the effort to pass or defeat laws, the meaning, effect or application of which is in issue in the proceeding unless the judge believes that his or her prior involvement was so well known as to raise a reasonable doubt in the public mind as to his or her capacity to be impartial.

CCP Section 170.3 specifies that, if a judge determines himself or herself to be disqualified, the judge is required to notify the presiding judge of the court of his or her recusal and must not further participate in the proceeding, unless his or her disqualification is waived by the parties.

A judge who determines himself or herself to be disqualified after disclosing the basis for his or her disqualification on the record may ask the parties and their attorneys whether they wish to waive the disqualification, except in specified instances.

If a judge who should disqualify himself or herself refuses or fails to do so, any party may file with the clerk 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. Without conceding his or her disqualification, a judge whose impartiality has been challenged by the filing of a written statement may request any other judge agreed upon by the parties to sit and act in his or her place.

In addition, the determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought only by the parties to the proceeding. The petition for the writ must be filed and served within 10 days after service of written notice of entry of the court’s order determining the question of disqualification.

CCP Section 170.4 provides that a disqualified judge may do any of the following:

• Take any action or issue any order necessary to maintain the jurisdiction of the court pending the assignment of a judge not disqualified.

• Request any other judge agreed upon by the parties to sit and act in his or her place.

• Hear and determine purely default matters.

• Issue an order for possession prior to judgment in eminent domain proceedings.

• Set proceedings for trial or hearing.

• Conduct settlement conferences.

CCP Section 170.5 provides definitions for the terms “judge,” “financial interest,” “officer of a public agency,” “private practice of law,” “proceeding,” and “fiduciary.”

CCP Section 170.6 specifies that a judge, court commissioner, or referee of a superior court of the State of California cannot try a civil or criminal action or special proceeding of any kind or character nor hear any matter that involves a contested issue of law or fact when it is established as provided in this section that the judge or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.

A motion under this paragraph may be made following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.

CCP Section 170.7 limits some provisions of law for a judge designated or assigned to serve on the appellate division of a superior court in the judge’s capacity as a judge of that division.

CCP Section 170.8 provides that, when there is no judge of a court qualified to hear an action or proceeding, the clerk of the court must notify the Chair of the Judicial Council of that fact. The judge assigned by the Chair of the Judicial Council must then hear the action or proceeding at the time fixed.

CCP Section 170.9 prohibits a judge from accepting gifts from a single source in a calendar year with a total value of more than $250 (adjusted biennially by the Commission on Judicial Performance to reflect changes in the CPI).

However, this section does not prohibit payments for travel or lodging permitted, gifts exchanged of similar value, or monies from a person whose preexisting relationship with a judge would prevent the judge from hearing a case involving that person. No judge is allowed to accept any honorarium. Payment for teaching or writing for a publisher is permitted. There are extensive rules on gifts and their exceptions.

The Commission on Judicial Performance enforces the prohibitions of this section with regard to judges of the superior courts and justices of the courts of appeal and the Supreme Court.