Judge Didn’t Have to Divulge His Discipline Record

In the case of Haworth v. Superior Court (Ossakow), California Supreme Court has ruled that a former judge, serving as a neutral arbitrator in a case involving an allegedly-botched plastic surgery, was not required to disclose to parties that he had been publicly censured for creating courtroom environment where discussions of sex and improper ethnic and racial comments were customary. After medical doctor performed a cosmetic surgery on Plaintiffs lip, Plaintiff allegedly suffered stiffness and numbness in her lips and her smile became somewhat lopsided. Plaintiff, on whom several other doctors had performed other plastic surgeries, then sued the doctor for medical malpractice. She claimed that she had not given consent for the doctor to use the surgical procedure he had, that its use was below applicable standard of care, and she had been harmed as result.

In accordance with an arbitration agreement, Plaintiffs suit was referred to arbitration; the parties chose retired Judge Norman Gordon to act as their neutral arbitrator. As required by law, Judge Gordon submitted a disclosure statement in which he revealed his involvement with other members of defense counsels firm, but not other information.

After arbitration concluded, arbitration panel rendered a split decision, authored by Judge Gordon, in favor of doctor, finding that Plaintiff had failed to establish lack of consent, doctors choice of procedure did not fall below applicable standard of care, Plaintiffs expert could not give definitive answer on causation, and doctors expert was more credible.

In April 2007, Plaintiff found out that Judge Gordon had been publically censured in 1996, for engaging in conduct prejudicial to the administration of justice that brought his judicial office into disrepute. According to the findings made by the Commission on Judicial Performance (as adopted by California Supreme Court in Gordon (1996) 13 Cal.4th 472), between April of 1990, and October 27, 1992, Judge Gordon made sexually suggestive remarks to staff on several occasions, asked sexually suggestive questions, used crude and demeaning names and descriptions and an ethnic slur to refer to a staff member, described fellow jurists physical attributes in demeaning manner, and sent a staff member a sexually suggestive postcard at the courthouse. Those findings noted that Judge Gordons actions were not intended to cause shame, embarrassment, or injury, to coerce or to vent anger but were done “in an ostensibly joking manner.” Still, they caused a courtroom environment in which discussions of sex and improper comments were commonplace.

Plaintiff then petitioned to vacate the arbitration award, claiming, among other things, that Judge Gordon should have disclosed that he had been publically censured. Trial Court found that Judge Gordons censure was information that would cause a reasonable person to question whether Judge Gordon could be impartial in this case, and vacated the arbitration award. When the doctor petitioned the California Appellate Court for a writ of mandamus to reinstate the arbitration award, the Appellate Court summarily denied that petition. The California Supreme Court then granted review and transferred the case back to the Appellate Court with directions to issue an alternative writ. The Appellate Court did, but then filed an opinion again denying the petition, finding that under either de novo or substantial evidence standard, disclosure of censure was required because it was based on Judge Gordons disparaging female associates on basis of their attributes, which might cause a reasonable person to doubt that he could be impartial in a case involving womans cosmetic surgery.

California Supreme Court again granted a review, and now, the Supreme Court has reversed the Appellate Courts decision. The Supreme Court has ruled that (1) applicable standard of review in arbitrator disclosure cases is de novo; (2) nothing in Judge Gordons public censure would lead a reasonable person to doubt that Judge Gordon could be fair to female litigants generally or in context of this case; (3) a reasonable person would assume that Judge Gordon had learned from past mistakes, would be able to put personal attitudes aside, and would decide case based on evidence; (4) gender or gender stereotyping was not part of a subject matter or material to this case; (5) scope of arbitrators duty of disclosure is not as broad as that of a trial court judge; and (6) broadening scope of arbitrators duty of disclosure would undermine finality of arbitration awards. The Supreme Court has ruled that the Appellate Court erred by determining that Judge Gordon was required to disclose prior censure and reverses that decision.

The Dissent would have affirmed the Appellate Courts decision. The Dissent believes that (1) the majority sacrifices the integrity of the arbitration system on the altar of arbitral finality; (2) additional findings of Commission on Judicial Performance (of which dissent would take judicial notice) show that Judge Gordon harbored disrespectful, disdainful and denigrating attitudes toward women, on which he was either unwilling or unable to refrain from acting; and (3) those findings would lead reasonable person to doubt Judge Gordons ability to put aside his contempt for women and his single-minded focus on their sexuality, while serving as arbitrator in gender-sensitive case where subject matter could bring biased attitudes into play.

Read more