CJEO has collected the following sources to provide support and practical guidance for appellate justices.
CJEO Advisory Opinions Involving Conduct by Appellate Justices
The following advisory opinions respond to questions from, or involve conduct by, appellate justices:
|Disqualification Obligations for Participants in the California Judicial Mentor Program (CJMP)||CJEO Expedited Opinion 2022-045|
|Acceptance of Attorney Services from a Law Firm||CJEO Expedited Opinion 2021-038|
|Judicial Obligations Relating to Social Media Comments by Appellate Court Staff||CJEO Oral Advice Summary 2020-037|
|Appellate Disqualification for Judicial Council Service in Matters Challenging COVID-19 Emergency Rules and Orders||CJEO Oral Advice Summary 2020-036|
|Appellate Disqualification for Prior Peremptory Challenge as a Trial Judge in the Matter||CJEO Oral Advice Summary 2020-035|
|Soliciting Endorsements from Trial Court Judges for Other Appellate Court Justices Subject to Retention Elections||CJEO Oral Advice Summary 2018-026|
|Appellate Disqualification Issues||CJEO Oral Advice Summary 2018-023|
|Inviting Attorneys to Provide Legal Education to Appellate Justices||CJEO Oral Advice Summary 2015-012|
|Application of the Rule of Necessity||CJEO Oral Advice Summary 2014-008|
|Disqualification and Disclosure: University Representation of a Party in a Matter Before a Justice Employed by the University||CJEO Informal Opinion Summary 2012-003|
|Employment of an Appellate Court Justice’s Spouse as a Staff Attorney in that Justice’s Chambers||CJEO Informal Opinion Summary 2012-001|
CJEO Advisory Opinions of General Interest to Appellate Justices
The following advisory opinions provide general advice that may assist appellate justices in responding to ethical questions:
|Judicial Consultations with Other Judges||CJEO Formal Opinion 2022-020|
|Commenting on or Endorsing Legal Education Books Written by Others||CJEO Expedited Opinion 2022-048|
|Disqualification for Civics Education Activities in Matters Involving School District Mask and Vaccine Mandates||CJEO Expedited Opinion 2021-044|
|Service on the California Access to Justice Commission or Child Welfare Council||CJEO Expedited Opinion 2021-043|
|Social Media Posts About the Law, the Legal System, or the Administration of Justice||CJEO Expedited Opinion 2021-042|
|Service on a Governmental Task Force||CJEO Expedited Opinion 2021-041|
|Gift Exchanges Between Judges and Their Staff||CJEO Expedited Opinion 2021-039|
|Providing Feedback on Attorney Courtroom Performance||CJEO Formal Opinion 2021-018|
|Providing Close Family Members with Advice that Implicates Legal Matters||CJEO Formal Opinion 2021-017|
|Independent Investigation of Information Contained in Electronic Court CMSs||CJEO Formal Opinion 2021-016|
|Judicial Participation in Public Demonstrations and Rallies||CJEO Formal Opinion 2020-014|
|Providing Educational Presentations at Specialty Bar Events||CJEO Formal Opinion 2018-012|
|Judicial Service on a Nonprofit Charter School Board||CJEO Formal Opinion 2017-011|
|Attending Political Fundraising or Endorsement Event||CJEO Formal Opinion 2016-008|
|Use of Judicial Title on a Scholarship Fund||CJEO Oral Advice Summary 2015-011|
|Accepting Gifts of Little or Nominal Value Under the Ordinary Social Hospitality Exception||CJEO Formal Opinion 2014-005|
CJP Disciplinary Decisions Involving Misconduct by Appellate Justices
- Public Admonishment of Justice Vance W. Raye (2022) [Appellate justice delayed in deciding a significant number of appellate matters over a lengthy period and failed to exercise his administrative and supervisory authority to provide court-wide procedures for the timely resolution of appellate matters]
- Decision and Order Removing Justice Jeffrey W. Johnson from Office (2020) [Appellate justice engaged in a pattern of sexual misconduct toward women that he encountered at the courts where he worked and at professional functions, including a fellow justice, research attorneys, other judicial staff and junior attorneys]
- Brief History
In 1982, the California Supreme Court held that the procedures for trial judge disqualification do not apply to the disqualification of an appellate justice and that each appellate justice must individually decide whether the facts require recusal. (Kaufman v. Court of Appeal (1982) 31 Cal.3d 933)
In 1984, the Legislature amended Code of Civil Procedure section 170.5 to remove appellate justices from the definition of “judge,” thus eliminating the disqualification rules applicable to appellate justices.
In 2000, the California Supreme Court promulgated canon 3E, establishing the grounds, but not the procedures, for appellate disqualification. Canon 3E has since been amended to include additional grounds for appellate disqualification.
- Applicable Canons and Rules
California Code of Judicial Ethics
The following canons from the Code of Judicial Ethics are particularly relevant to appellate justices:
(3) A judge shall disqualify himself or herself in accordance with the following: (a) Statements that commit the judge to a particular result. A judge is disqualified if the judge, while a judge or candidate for judicial office, made a statement, other than in a court proceeding, judicial decision, or opinion, that a person aware of the facts might reasonably believe commits the judge to reach a particular result or rule in a particular way in a proceeding. (b) Bond ownership. Ownership of a corporate bond issued by a party to a proceeding and having a fair market value exceeding $1,500 is disqualifying. Ownership of a government bond issued by a party to a proceeding is disqualifying only if the outcome of the proceeding could substantially affect the value of the judge’s bond. Ownership in a mutual or common investment fund that holds bonds is not a disqualifying financial interest.
(4) An appellate justice shall disqualify himself or herself in any proceeding if for any reason: (a) the justice believes his or her recusal would further the interests of justice; or (b) the justice substantially doubts his or her capacity to be impartial; or (c) the circumstances are such that a reasonable person aware of the facts would doubt the justice’s ability to be impartial.
(5) Disqualification of an appellate justice is also required in the following instances:
(a) The appellate justice has served as a lawyer in the pending proceeding, or has served as a lawyer in any other proceeding involving any of the same parties if that other proceeding related to the same contested issues of fact and law as the present proceeding, or has given advice to any party in the present proceeding upon any issue involved in the proceeding.
(b) Within the last two years, (i) a party to the proceeding, or an officer, director or trustee thereof, either was a client of the justice when the justice was engaged in the private practice of law or was a client of a lawyer with whom the justice was associated in the private practice of law; or (ii) a lawyer in the proceeding was associated with the justice in the private practice of law.
(c) The appellate justice represented a public officer or entity and personally advised or in any way represented that officer or entity concerning the factual or legal issues in the present proceeding in which the public officer or entity now appears.
(d) The appellate justice, his or her spouse or registered domestic partner, or a minor child residing in the household, has a financial interest or is either a fiduciary who has a financial interest in the proceeding, or is a director, advisor, or other active participant in the affairs of a party. . . .
(e)(i) The justice or his or her spouse or registered domestic partner, or a person within the third degree of relationship to either of them, or the spouse or registered domestic partner thereof, is a party or an officer, director, or trustee of a party to the proceeding, or (ii) a lawyer or spouse or registered domestic partner of a lawyer in the proceeding is the spouse, registered domestic partner, former spouse, former registered domestic partner, child, sibling, or parent of the justice or of the justice’s spouse or registered domestic partner, or such a person is associated in the private practice of law with a lawyer in the proceeding.
(f) The justice: (i) served as the judge before whom the proceeding was tried or heard in the lower court; (ii) has personal knowledge of disputed evidentiary facts concerning the proceeding; or (iii) has a personal bias or prejudice concerning a party or a party’s lawyer.
(g) A temporary or permanent physical impairment renders the justice unable properly to perceive the evidence or conduct the proceedings.
(h) The justice 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 such employment or service, . . . .
(i) The justice’s spouse or registered domestic partner a person within the third degree of relationship to the justice or his or her spouse or registered domestic partner, or the person’s spouse or registered domestic partner, was a witness in the proceeding.
(j) The justice has received a campaign contribution of $5,000 or more from a party or lawyer in a matter that is before the court, and either of the following applies:
(i) The contribution was received in support of the justice’s last election, if the last election was within the last six years; or
(ii) The contribution was received in anticipation of an upcoming election.
It shall not be grounds for disqualification that the justice: (a) 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; (b) Has in any capacity expressed a view on a legal or factual issue presented in the proceeding, except as provided in Canon 3E(5)(a), (b), or (c); (c) 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.
California Rules of Court
- Purpose and intent: The California Code of Judicial Ethics states the circumstances under which an appellate justice must disqualify himself or herself from a proceeding. The purpose of this rule is to provide justices of the Courts of Appeal with additional information to help them determine whether to disqualify themselves from a proceeding.
Read more of Rule of Court 8.208