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Judge Marrying Attorney Not Disqualified From Case

Posted By Azemika   |   Comments (0)
Divorce,

 

 

In writ proceeding, California Appellate Court has ruled that Court Commissioner’s presiding over wedding of Mother’s divorce attorney while post-divorce support matters were pending in Father and Mother’s divorce was not an event that required Commissioner’s disqualification. In the case of Wechsler v. Superior Court (Wechsler), Mother and Father, in January 2010, engaged in post-divorce custody and support proceedings which were heard by Trial Court. In 2012, Mother filed a motion for support increase and Father countered by raising “numerous other related issues.” Trial Court subsequently appointed an accounting expert and granted several continuances. One week before a hearing scheduled for November 1, 2013, attorneys for Mother and Father appeared for an ex parte hearing on Father’s request for continuance. While they were waiting, Mother’s attorney (A-1) told Father’s attorney (A-2) that Trial Court would be officiating at her wedding in December 2013. However, Trial Court made no mention of being asked by A-1 to officiate at the nuptials, and neither attorney raised the issue at the hearing. When the hearing concluded, Trial Court denied Father’s continuance request.

On October 25, 2013, Mother filed a motion for additional attorney’s fees and costs, along with supporting declaration. Father countered by filing verified statement of disqualification, seeking an order disqualifying Trial Court for cause on the basis that Trial Court’s agreement to officiate at A-1’s wedding gave an appearance of a close relationship that could lead an average person to doubt Trial Court’s ability to be impartial in the handling of Mother and Father’s case. Trial Court filed a verified answer, denying any personal relationship with A-1, asserting that she knew A-1 only though court appearances and attendance at legal functions, and stating that she would officiate at the marriage, but would not attend any other wedding connected functions, including the reception. Trial Court averred that she did not disclose this matter because it slipped her mind, and maintained that she had been and could continue to be “impartial to all parties and counsel.” After the disqualification matter was assigned to another judge for decision, that judge found that Father had failed “to show ‘a close personal relationship’ between [A-1 and Trial Court] that would ‘raise doubts regarding [Trial Court’s] ability to remain impartial.” Accordingly, the judge denied the disqualification request.

Father then petitioned California Court of Appeals for a writ of mandate, claiming that the mere fact of officiating at counsel’s wedding required disqualification. In opposition, Mother contended that officiating, without more, did not require disqualification. Court of Appeals issued an Order to Show Cause. Meanwhile, Mother substituted new counsel in place of A-1. Acknowledging the matter may be moot but is an issue that is of continuing public interest and is likely to recur, Court of Appeals has now denied the writ petition.

Court of Appeals has ruled that (1) California Code of Civil Procedure Section 170.1(a)(6)(A)(iii) provides for disqualification of a judge where “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial;” (2) the “person” must be a reasonable layperson (outside the judicial system) who is a “well-informed thoughtful observer;” (3) relying on the case of Carter (2005) 36 Cal.4th 1215 [judge who officiated at prosecutor’s daughter’s wedding before presiding over defendant’s death penalty trial not disqualified], judge who has no personal or social relationship with attorney at whose wedding he or she officiated need not be disqualified, but must disclose the fact of the officiating; (4) facts here do not establish a preexisting social or personal relationship between A-1 and Trial Court; and (5) mere fact of officiating at attorney’s wedding, without more, is not grounds for disqualification, but the judge must carefully consider all factors that might be cause for concern before agreeing to officiate. Court of Appeals concludes that Trial Court need not have been disqualified on these facts.

 

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