Purpose and Scope of Rule

Central to impartial decision-making by arbitrators and judges alike is the need for them to make disclosures that may give rise to a challenge to the judge's impartiality by one of the parties, even if the judge or arbitrator concludes that he or she is not disqualified. The responsibility of judges to make such disclosures is well codified under California law. Canon 3E(2) of the California Code of Judicial Ethics states:

"In all trial court proceedings, a judge shall disclose on the record information that is reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the judge believes there is no actual basis for disqualification."

For trial judges, noncompliance with this ethical disclosure requirement may subject the judge to discipline by the Commission on Judicial Performance. (Cal. Const., art. VI, § 18.) (La Serena Properties, LLC v. Weisbach (2010) 186 Cal.App.4th 893, 902; see also, Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 667, [stating: “In the published portions of this opinion, we consider Brown's contentions that the trial judge erred in failing to disclose his “significant financial ties with the insurance industry,” and that her due process right to an impartial judge was violated. We conclude that the trial judge was not required to disclose his ownership interests in various insurance related companies, since none of those companies was a party to this case or a carrier of ABG's. We further conclude that there was no violation of Brown's due process right to an impartial judge.”]

Disclosure and Peremptory Challenges

“[W]e are aware of no authority, and Brown has cited none, that supports the proposition that a trial judge is required to make disclosures under Canon 3(E)(2) in order to enable a party to file a peremptory challenge under section 170.6. Both former and current Canon 3E(2) require a trial court to disclose information that is “reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1.” (Brown v. American Bicycle Group, LLC (2014) 224 Cal.App.4th 665, 672.)

Former Judges as Arbitrators

Despite some differences between the policies underlying arbitral disclosure and those underlying judicial recusal, there is no reason to interpret the appearance-of-partiality rule more broadly in the context of arbitrator disclosure than in the context of judicial recusal. The language of both applicable statutes is virtually identical, and the judicial standard is explicitly made applicable to arbitrators. (Code Civ. Proc. 1281.9(a)(1) (proposed neutral arbitrator must disclose “[t]he existence of any ground specified in Section 170.1 for disqualification of a judge”).) It may be appropriate for an arbitrator to resolve doubts in favor of disclosure, but the arbitrator has no legal duty to do so. (Haworth v. Super. Ct. (2010) 235 P.3d 152, 166 n. 14 (stating, “In contrast, a trial court judge must “disclose on the record information that is reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the judge believes there is no actual basis for disqualification.” (Cal. Code Jud. Ethics, canon 3E(2).) The arbitrator has no equivalent duty. As noted above, the arbitrator's duty to disclose extends to matters that would require a judge to disqualify himself or herself. The arbitrator, however, is not required to disclose all matters that a judge would be required to disclose.”))

Judges Officiating Weddings

Before a judicial officer agrees to officiate at an attorney's wedding, the officer must carefully evaluate all factors that may potentially impact disqualification. These factors include the extent of the judge's involvement in the ceremony and in other related events; the nature of the parties' past and current social/personal relationship; any ties or connections with the families of the wedding party; and the nature of the issues pending or likely to come before the court. (See generally United Farm Workers, supra, 170 Cal.App.3d at 104–105.)

Because the act of officiating may raise reasonable questions about the relationship, this fact is a matter that must be disclosed for a reasonable time. (Cal. Code Jud. Ethics, canon 3E(2)(a); see Cal. Judges Assn., Jud. Ethics Com., Judicial Ethics Update (November 2012) at 3 [“A judge, who has no social relationship with an attorney other than performing the attorney's wedding, is required to disclose that he/she performed the wedding in any cases in which the attorney appears for a period of at least two years”].) Not only is this required by the California Code of Judicial Ethics, but from a practical standpoint the disclosure allows the attorneys a full opportunity to raise factors that may influence the court's assessment of whether disqualification is required under section 170.1(a)(6)(A)(iii). (Wechsler v. Superior Court (2014) 224 Cal.App.4th 384, 396-97.)