1

CALIFORNIA SUPREME COURT

COMMITTEE ON JUDICIAL ETHICS OPINIONS

350 McAllister Street, Room 1144A

San Francisco, CA 94102

(855) 854-5366

www.JudicialEthicsOpinions.ca.gov

CJEO Formal Opinion No. 2013-002

[Issued December 11, 2013]

DISCLOSURE ON THE RECORD WHEN THERE IS NO COURT REPORTER

OR ELECTRONIC RECORDING OF THE PROCEEDINGS

I. Question Presented

The Committee on Judicial Ethics Opinions has been asked to provide an opinion

on the following question:

What constitutes an “on the record” disclosure by a trial judge pursuant to canon

3E(2)(a) of the Code of Judicial Ethics when there is no court reporter or

electronic recording of the proceedings?

II. Summary of Conclusions

The Code of Judicial Ethics requires that all disclosures be made “on the record.”

(Cal. Code of Jud. Ethics, canon 3E(2)(a).) Oral and implied disclosures that are not

made part of the record do not satisfy the canon. The simplest way for a judge to ensure

that a disclosure is part of the record is to state the disclosure in open court when a court

Califo

rnia

Jud

icia

l Bra

nch

News N

etwor

k

CJBNN.c

om

2

reporter is transcribing the proceedings or an electronic recording is being made of the

proceedings. However, not all proceedings are reported or electronically recorded. In

those circumstances, a judge must take steps to ensure that a document describing the

nature of any information being disclosed is made part of the case file and must also

make the disclosure orally in open court or otherwise notify the lawyers and parties of the

written disclosure.

III. Introduction

Canon 3E(2)(a) of the California Code of Judicial Ethics requires judges in all trial

court proceedings to disclose "on the record" any 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. Making disclosures in

open court when an official court reporter is transcribing the proceedings, or when the

proceedings are being electronically recorded and may be transcribed, is a simple and

efficient way to ensure that they are part of the record. However, due to recent court

budget cuts, more and more matters are being heard without benefit of a reporter or

electronic recording. Because a judicial officer must nonetheless satisfy canon 3E(2)(a)

and make “on the record” disclosures of information reasonably relevant to the question

of disqualification, the committee has been asked how judges can satisfy this ethical

obligation when there is no court reporter and no electronic recording. To provide

guidance, this opinion addresses what constitutes a record and how to make a disclosure

on the record.1

1 Campaign contribution disclosures under canon 3E(2)(b) and Code of Civ. Pro. §

170.1(a)(9)(C) are not encompassed in the question posed to the committee and are

beyond the scope of this opinion. The committee may address “on the record”

disclosures in these special circumstances in a separate opinion.

Califo

rnia

Jud

icia

l Bra

nch

News N

etwor

k

CJBNN.c

om

3

IV. Authorities

A. Applicable Canons2

Canon 3E(2)(a): “E. Disqualification and Disclosure. . . . (2) In all trial court

proceedings, a judge shall disclose on the record as follows: . . . (a) Information relevant

to disqualification. A judge shall disclose 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 disqualifications.”

B. Other Authorities

California Code of Civil Procedure, sections 170.1, 170.1(a)(9)(B)-(C), 170.5(f),

269(a)-(b), and 1904.

Government Code, sections 68086, 68151(a)(1), (2), and (3), 68152(j)(14), 69957.

California Rules of Court, rules 2.952. 2.956(c) and (e)(1), 8.120(a), 8.122(b),

8.128(a), 8.320(a)-(b), 8.336(c), 8.388(b), 8.407(a), 8.480(b), 8.610(a), 8.832(a), 8.835,

8.860(a), 8.863, 8.867, 8.868, 8.910(a), 8.914, 8.920, 8.957 and 10.500(c)(1).

California Welfare & Institutions Code, sections 347, 677.

Adams v. Commission on Judicial Performance (1995) 10 Cal.4th 866, 903-906.

Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 113.

Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 893-894.

Michael v. Aetna Life & Casualty Ins. Co. (2001) 88 Cal.App.4th 925, 932.

People v. Dubon (2001) 90 Cal.App.4th 944, 954.

California Judges Association, Ethics Committee Advisory Opinions 45, and 48.

Rothman, California Judicial Conduct Handbook (3d ed. 2007) section 7.73.

2 All further references to canons and to Advisory Committee commentary are to

the California Code of Judicial Ethics unless otherwise indicated.

Califo

rnia

Jud

icia

l Bra

nch

News N

etwor

k

CJBNN.c

om

4

V. Discussion

Canon 3E(2)(a) of the California Code of Judicial Ethics requires judges in all trial

court proceedings to make an "on the record" disclosure of 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.3 While the Code of

Judicial Ethics does not define “on the record,” California Supreme Court decisions and

other authorities interpreting canon 3E(2)(a) make clear that oral and implied disclosures

that do not become part of the record are insufficient (Adams v. Commission on Judicial

Performance (1995) 10 Cal.4th 866, 903-906 [general knowledge, affirmative references,

and incomplete oral disclosures constitute failure to disclose on the record for purposes of

waiver]; Fletcher v. Commission on Judicial Performance (1998) 19 Cal.4th 865, 893-

894 [no evidence of disclosure on the record where the judge claimed to have advised of

ex parte contacts at an in chambers sentencing with no record of the proceedings]; Cal.

Judges Assoc., Formal Ethics Opinion No. 45 (1997) p. 6 [the record or the clerk‟s

minutes of the proceedings must reflect a disclosure and merely mentioning to counsel is

insufficient]; Cal. Judges Assoc., Formal Ethics Opinion No. 48 (1999) p. 6 [implied

disclosure does not satisfy the requirement of disclosure on the record]).

These authorities raise the question of what constitutes a record in trial court

proceedings and, more specifically, how to accomplish making a disclosure part of the

record where there is no record of oral proceedings.

A. What constitutes a record?

Because the canons do not define “on the record” for purposes of judicial

disclosures, we look to other sources for guidance. Several statutes define records of

court proceedings in broad terms. The Code of Civil Procedure defines a judicial record

as the “record or official entry of the proceedings in a Court of justice, or of the official

3 The committee has not been asked to provide an opinion on the sufficiency of any

particular disclosures under the Code of Judicial Ethics and other statutes.

Califo

rnia

Jud

icia

l Bra

nch

News N

etwor

k

CJBNN.c

om

5

act of a judicial officer, in an action or special proceeding” (Code Civ. Proc., § 1904).

For purposes of trial court record management, the Government Code provides that a

court record consists of “. . . [a]ll filed papers and documents in the case . . . ,”

[a]dministrative records filed in an action or proceeding . . . [including] . . . transcripts,

and tapes of electronically recorded proceedings filed, lodged, or maintained in

connection with the case . . . ,” and other records, including minutes (§§ 68151(a)(1), (2),

(3), 68152(j)(14)). For purposes of judicial administration record requests, an

adjudicative record is defined as “. . . any writing prepared for or filed or used in a court

proceeding . . . .” (Cal. Rules of Court, rule 10.500(c)(1).)

The rules of court governing appellate matters are instructive because they narrow

the broad scope of trial court records for purposes of review on appeal. Those rules

specify that a record of trial court proceedings contains two parts: (1) the record of oral

proceedings, and (2) the record of written documents. (See, Cal. Rules of Court, rules

8.120(a)-(b) [civil appeals], 8.320(a)-(c) [criminal appeals].)

1. Record of Oral Proceedings

A record of proceedings is required to be made by an official shorthand court

reporter in juvenile proceedings (Welf. & Inst. Code, §§ 347, 677) and in felony

proceedings when requested by the defendant or prosecution (Code Civ. Proc., § 269,

subd. (a)(2)). Except in those matters where a reporter is required, local courts have the

discretion to decide, as a matter of court administration, whether an official reporter is

made available. (Welf. & Inst. Code, §§ 347, 677; Code Civ. Proc., § 269, subd. (a)(2);

Cal. Rules of Court, rule 2.956(e)(1).) In general civil matters where an official court

reporter is not made available by the court, the parties may arrange for the presence of a

certified shorthand reporter at their expense. (Gov. Code, § 68086; Cal. Rules of Court,

rule 2.956(c).) In all proceedings where a shorthand reporter makes a verbatim record, an

official transcript of the proceedings may be requested. (Code Civ. Proc., § 269, subd.

(b).) Thus, in those proceedings where a court reporter is present, oral disclosures made

in open court will be "on the record" as required by canon 3E(2)(a).

Califo

rnia

Jud

icia

l Bra

nch

News N

etwor

k

CJBNN.c

om

6

In some proceedings where neither the court nor a party provides an official

shorthand reporter, the local court may elect to make electronic recording equipment

available. (Gov. Code, § 59957 [electronic recording is permitted by statute in limited

civil, misdemeanor, and infraction proceedings only].) Written transcripts of official

electronic recordings may be prepared at the request of the court or a party. (Cal. Rules

of Court, rule 2.952(g).) In some circumstances, the electronic recording may be used as

the record of oral proceedings in lieu of a reporter's transcript prepared from the

recording. (Cal. Rules of Court, rule 2.952(i), (j).) Oral disclosures made in open court

at proceedings that are electronically recorded will also be "on the record" as required by

canon 3E(2)(a).

Although court reporters are statutorily required in juvenile and felony matters and

courts are authorized to provide electronic recording equipment in certain proceedings as

noted above, as a matter of practical reality and current economic constraints, neither

reporters, nor recording equipment, will be available in large numbers of proceedings that

come before the courts every day. Where there is no oral record, the record of written

documents becomes significant to the question of how a trial judge complies with the

obligation to make disclosures "on the record."

2. Record of Written Documents

While there is no definition of a record for purposes of judicial disqualification,

appellate rules identify what documents are recognized as the record of proceedings for

purposes of review. On appeal, the record of written documents is set forth in the clerk‟s

transcript, which generally includes notices, judgments, orders, minute orders, court

minutes, the register of actions, and other documents filed or lodged in the case (Cal.

Rules of Court, rules 8.120(a)(A), 8.122(b), 8.320(b), 8.336(c), 8.388(b), 8.407(a),

8.480(b), 8.610(a)(1), 8.832(a), 8.860(a)(1)(A), 8.910(a)(1)(A), 8.920(1)). In some

appellate matters, however, the record of written documents may alternatively consist of

the court‟s file, where allowed by local rule (Cal. Rules of Court, rules 8.120(a)(C),

8.128(a), 8.860(a)(1)(B), 8.863, 8.910(a)(1)(B), 8.914, 8.920(1)). In small claims

Califo

rnia

Jud

icia

l Bra

nch

News N

etwor

k

CJBNN.c

om

7

appeals, the record on appeal will always consist of the court file and all related papers

(rule 8.957).

For purposes other than judicial disqualification, several courts have evaluated

specific court documents and found that minute orders and the court‟s official minutes

suffice as “a record” when entered in the case file (People v. Dubon (2001) 90

Cal.App.4th 944, 954 [a minute order qualified as „a record‟]; Copley Press, Inc. v.

Superior Court (1992) 6 Cal.App.4th 106, 113 [official court minutes accurately and

officially reflect the work of the court]; Michael v. Aetna Life & Casualty Ins. Co. (2001)

88 Cal.App.4th 925, 932 [a court order is a document that is either entered in the court's

permanent minutes or signed by the judge and stamped „filed‟]).

From these cases and the rules of court, we conclude that all documents filed,

entered, or lodged in the case file constitute a trial court‟s written record of proceedings.

Such documents include minute orders, the official clerk‟s minutes, and formal orders

entered in the case file. Thus, when there is no court reporter or electronic recording, and

therefore no record of oral proceedings, disclosures must be made part of the written

record of proceedings in order to be “on the record” pursuant to canon 3E(2)(a).

B. How To Accomplish Making A Disclosure Part of the Record

Where there is not a reporter‟s transcript or electronic recording, an oral disclosure

may be made part of the written record of proceedings by preparing and entering a

disclosure document in the court file. The written disclosure may take many forms. It

may be a brief handwritten document that outlines the information disclosed. It may also

take the form of a formal, complete statement, detailing the content of the disclosure.

The written disclosure may also be entered in the case file in the form of a minute

order or official court minutes. However, merely having the clerk enter in the minutes

that a disclosure has been made would be insufficient. (Adams v. Commission on

Judicial Performance, supra, 10 Cal.4th 866, 903-906.) When this procedure is used, the

minutes should reflect both the fact that the disclosure was made and the nature of the

information disclosed. Although the task of documenting the disclosure may be

Califo

rnia

Jud

icia

l Bra

nch

News N

etwor

k

CJBNN.c

om

8

delegated to a clerk, ultimately it is the judge's responsibility to confirm that the nature of

the disclosure has been accurately documented and made a part of the case file. (See

Adams v. Commission on Judicial Performance, supra, 10 Cal.4th 866, 906 [failure to

disclose on the record in general terms the nature of the disqualifying relationship was

improper for purposes of waiver].)

Moreover, because disclosures are intended to provide the parties and lawyers

appearing before a judge with the information being disclosed, simply filing a written

disclosure document in the court file is not sufficient. (See Rothman, Cal. Judicial

Conduct Handbook (3d ed. 2007) § 7.73, p. 381 [purpose of canon 3E(2) is to provide the

parties and their counsel with information relevant to recusal determinations].) To

comply with the canons, a judge making disclosures where there is no court reporter or

electronic recording must document the disclosure as noted above and make the

disclosure orally in open court or otherwise notify the lawyers and parties of the written

disclosure.

VI. Conclusions

In order to comply with the canon 3E(2)(a) requirement that disclosures be made

“on the record,” trial court judges hearing matters that are not reported or electronically

recorded must ensure that any disclosures become a part of the written record of

proceedings. To accomplish this, disclosures must be documented in a writing that is

entered in the case file as a minute order, official clerk‟s minutes, or a formal order. The

lawyers and parties must also be notified orally or otherwise by service of the written

disclosure document.

As guidance, the committee provides the following steps that may be taken in all

cases where disclosure is required:

1. If the proceeding is being reported or electronically recorded, make an oral

disclosure in open court, stating in general terms the nature of any information

being disclosed.

2. If the proceeding is not being reported or electronically recorded:

Califo

rnia

Jud

icia

l Bra

nch

News N

etwor

k

CJBNN.c

om

9

a) Prepare or have prepared a disclosure document that states in general terms

the nature of any information disclosed;

b) Enter the disclosure document in the case file as a minute order, official

court minutes, or a formal order;

c) Make an oral disclosure in open court or otherwise notify the lawyers and

parties of the written disclosures; and

d) Check to confirm that the disclosure document accurately states the

information disclosed and that it is entered in the case file.

This opinion is advisory only (Cal. Rules of Court, rules 9.80(a), (e); Cal. Com.

Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rules 1(a), (b)). It is based

on facts and issues, or topics of interest, presented to the California Supreme Court

Committee on Judicial Ethics Opinions in a request for an opinion (Cal. Rules of Court,

rule 9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate by the

committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)).

Califo

rnia

Jud

icia

l Bra

nch

News N

etwor

k

CJBNN.c

om

May 2011

Speaking up about judicial misconduct

By Janice M. Brickley

Highly publicized corruption scandals involving government officials

provide fertile ground for Monday morning pundits. They can also be a

catalyst for education and positive change. Such is the case with the “kids

for cash” judicial corruption scandal in Luzerne County, Pennsylvania. In

an article published in the March Bar Journal, I discussed the

Pennsylvania Judicial Conduct Board’s failure to follow through with a

complaint concerning the judges involved in the scandal and what the California

Commission on Judicial Performance has done to ensure that its rules and procedures

are not susceptible to the failures that occurred in Pennsylvania. This article examines

the role of an attorney in exposing judicial corruption and abuse in the context of the

“kids for cash” scandal.

Two former judges, Mark A. Ciavarella Jr. and Michael T. Conahan, were charged with

federal crimes based on their participation in a scheme to close down a county juvenile

detention facility and contract for the placement of juveniles with for-profit facilities in

exchange for a secret “finder’s fee” of $997,600. Juveniles were sent to the private

detention facilities by Ciavarella at the same time both judges were accepting payoffs

from the owner of the facilities. Conahan pleaded guilty to one count of racketeering

and in February, Ciavarella was convicted by jury of 12 felony counts, including

racketeering, conspiracy and money laundering conspiracy. Both men are awaiting

sentence.

The Report of the Pennsylvania Interbranch Commission on Juvenile Justice, issued last

May, examines the circumstances that led to the “kids for cash” scandal, including the

role of attorneys who appeared regularly before Judge Ciavarella in juvenile court.

While these attorneys were not privy to Ciavarella’s financial “arrangement” with the

owners of the detention facilities, they did know that Ciavarella had a “zero-tolerance”

policy that resulted in juveniles being sent to detention facilities in unprecedented

numbers. Under Ciavarella’s zero-tolerance policy, juveniles were automatically sent to

out-of-home placement for certain offenses, such as fighting in school, without an

individual evaluation of the circumstances of the offense or the offender – contrary to a

judge’s obligation to decide sentences on a case-by-case basis.

Attorneys who regularly appeared in Ciavarella’s courtroom also knew that he routinely

adjudicated and sentenced juveniles who were unrepresented by counsel without

obtaining the required waiver of the right to counsel. In 2003, the statewide percentage

of juveniles who waived the right to counsel was 7.9 percent; in Ciaverella’s courtroom

the “attorney waiver” rate was 50.2 percent. Similar gaps appear in the statistics

throughout Ciavarella’s five-year reign in juvenile court.

A criminal prosecutor is not only an advocate but, as a representative of the sovereign,

has a duty to seek justice, which includes the responsibility of seeing that the defendant

is accorded procedural justice. (Berger v. United States (1935) 295 U.S. 78, 88 [79

Top Headlines

Opinion

From the PresidentJanice M. BrickleyLetters to the Editor

MCLE Self-Study

Attorney Discipline

You Need to Know

Trials Digest

Public Comment

Ethics Byte

Contact Us

Marketplace

Archived Issues

Share

L.Ed. 1314, 1321, 55 S. Ct. 629]; County of Santa Clara v. Superior Court (2010) 50

Cal.4th 35, 48.) Nowhere is this responsibility more important than in juvenile court.

Under the Pennsylvania Rules of Professional Responsibility, prosecutors have an

ethical obligation to ensure that the accused has been advised of the right to counsel

and has been given the opportunity to obtain counsel. (See also American Bar

Association Model Code of Professional Conduct 3.8 (b) [a prosecutor shall “make

reasonable efforts to assure the accused has been advised of the right to, and the

procedure for, obtaining counsel and has been given reasonable opportunity to obtain

counsel . . .”].) Before accepting a waiver of the right to counsel from juvenile

defendants, Pennsylvania’s Rules of Juvenile Court Procedure require a judge to

conduct on-the-record discussions or “colloquies” to ensure that the juveniles

understand the right they are giving up. (See also Faretta v. California (1975) 422 U.S.

806 [45 L.Ed.2d 562, 95 S.Ct. 2525]; Iowa v. Tovar (2004) 541 U.S. 77 [158 L.Ed.2d

209, 124 S.Ct. 1379].) Yet, prosecutors regularly witnessed Ciavarella deciding cases of

unrepresented juveniles without first engaging in the required colloquies but said

nothing. The Report of the Interbranch Commission concluded that “the prosecutors

clearly abdicated their roles as ministers of justice and simply became passive observers

to the tragic injustices that were perpetrated against juvenile offenders.”

Jonathan Ursiak’s first assignment when he joined the public defender’s office in 2007

was to represent juveniles in Ciavarella’s court. On a regular basis, he observed

juveniles admitting to crimes and being sentenced without an attorney and without the

required advisements of rights by the judge and waivers from the juveniles. This was

not the only practice in Ciavarella’s courtroom that troubled Ursiak – proceedings were

abbreviated, psychological evaluation reports were not provided to him before the

hearing, juveniles were being sent to placement at an alarmingly high rate, the judge’s

zero-tolerance policy impeded the juvenile’s right to be heard, and, in general, the

public defender was not given an adequate opportunity to advocate for his clients.

When Ursiak reported his concerns to his supervisor, he was told the public defender’s

office did not need more clients. Undeterred, Ursiak provided assistance to the Juvenile

Law Center of Philadelphia, which was investigating the suspected abuses in Luzerne

County’s juvenile court.

Ursiak’s courage and persistence in reporting Ciavarella’s improper practices should be

applauded. However, the silence of other attorneys who knew of the abuses in

Ciavarella’s courtroom is disturbing. Had others reported the misconduct when it first

occurred, the abuses and corruption might have been abated years earlier – saving

countless youthful offenders from a harsh and draconian fate suffered at Ciavarella’s

hand.

According to the Interbranch Commission’s report, no attorney practicing in Ciavarella’s

courtroom ever filed a complaint with the Pennsylvania Judicial Conduct Board, the

agency responsible for investigating complaints of judicial misconduct. Young

prosecutors recognized the inherent unfairness of Ciavarella’s practices, but did not

know what to do or to whom to turn for guidance. Many defense attorneys who

appeared before Ciavarella were equally derelict. Public defenders and private attorneys

routinely witnessed Ciavarella violate the rights of juveniles, including their own clients,

yet most took no action. The Interbranch Commission found that these attorneys

“clearly abdicated their responsibility to zealously defend their clients and to protect

their due process rights.” “At a bare minimum,” the commission concluded, “they

should have contacted their supervisors in the Public Defenders Office and the local bar

associations or notified the appropriate judicial or attorney disciplinary organizations.”

Many factors can deter an attorney from reporting judicial misconduct – indifference,

fear of retaliation, inexperience, ignorance. During its investigation, the Interbranch

Commission found that some attorneys did not know how or where to report judicial

misconduct. The commission encouraged Pennsylvania’s Judicial Conduct Board to

partner with the Pennsylvania Bar Association to create and implement programs to

educate attorneys and the public on the existence of the judicial disciplinary board and

on how to report judicial misconduct. The commission also recommended that the

Judicial Conduct Board revise and update its Website to provide clear, simple

directions for filing complaints. In California, the Commission on Judicial Performance

works with the State Bar to provide information concerning the process for reporting

judicial misconduct. The commission’s website offers user-friendly instructions on how

to file a complaint of judicial misconduct, as well as information on what constitutes

judicial misconduct.

As tragically illustrated in the “kids for cash” scandal, those in the legal community

share a mutual responsibility to take action when faced with abuses of judicial

authority. Indifference and inaction hurts not only the individual targets of the

misconduct but the reputation and integrity of the bar and the judiciary.

• Janice M. Brickley is Legal Advisor to Commissioners at the California Commission

on Judicial Performance.

Copyright © 2015 The State Bar of California Contact Us | Archived Issues | Notices | Privacy Policy Site Design by Duuplex

Investigative Reporting, News, Analysis, Opinion & Satire

Sacramento Family Court NewsHOME TEMPORARY JUDGE CONTROVERSY 3rd DISTRICT COA CONTROVERSY

TANI G. CANTIL-SAKAUYE ATTORNEY MISCONDUCT SOURCE MATERIAL ARCHIVE RoadDog SATIRE

ABOUT SFCN CONTACT FAMILY COURT NEWS Terms & Conditions Privacy Policy

16 May 2013

Sacramento Superior Court Judges Violate State Law & Code of Judicial Ethics In Judge Pro Tem Conflict of Interest Disclosure Controversy

SACRAMENTO FAMILY COURT NEWS ANALYSIS UPDATE

In hundreds of cases, Sacramento Family Court judges have failed to make critical conflict of interest disclosures required by state law and the Code of Judicial Ethics, according to a courthouse whistleblower. The disclosure omission is ongoing and infects additional cases each week. The legitimacy of orders and

judgments in cases tainted by the error are subject to challenge by trial court set-aside motions or costly appellate

court review.

In most of the cases, one party is unrepresented and indigent - substantially reducing the chances that relief will

be sought, but nonetheless requiring taxpayers to foot the bill in the event of subsequent proceedings due to the

error. The potential public financial liability is significant. The current cost to taxpayers for a single appeal is

between $8,500 and $25,500, according to recent appellate court decisions. New court records leaked by a

Family Court Judges Fail to Make Conflict of Interest Disclosure - Hundreds of Cases Tainted by Error

Sacramento Family Court reform advocates say the tattered flag that flies above the courthouse is emblematic of the systemic rule of law breakdown - including serial conflict of interest disclosure violations - which they assert has taken place in court proceedings.

JUDICIAL MISCONDUCT (72)

JUDGE PRO TEM (51)

ATTORNEY MISCONDUCT (37)

MATTHEW J. GARY (34)

KICKBACKS (33)

FLEC (28)

PETER J. McBRIEN (26)

ARTS & CULTURE (23)

CHILD CUSTODY (23)

ROBERT SAUNDERS (22)

SCBA (22)

CJP (21)

JAMES M. MIZE (21)

CHARLOTTE KEELEY (19)

EMPLOYEE MISCONDUCT (19)

WATCHDOGS (19)

PRO PERS (18)

DIVORCE CORP (17)

DOCUMENTS (17)

PAULA SALINGER (15)

ROBERT HIGHT (14)

SACRAMENTO SUPERIOR COURT (13)

CARLSSON CASE (12)

RAPTON-KARRES (12)

APPEALS (11)

SHORTCUTS TO POPULAR SUBJECTS AND POSTS

21 More Next Blog» Create Blog Sign In

whistleblower and posted online exclusively by Sacramento Family Court News, including a conflict of interest disclosure filed by a civil court judge, show that other Sacramento County Superior Court judges do comply

with conflict laws.

To continue reading, click Read more>> below...

As Sacramento Family Court News reported last year, there are more than 60 family

law attorneys who also serve

as volunteer temporary judges

in Sacramento Family Court.

The potential conflict of interest

error occurs when full-time

family court judges fail to

disclose to litigants when the

opposing party is represented

by an attorney who also serves

as a temporary judge.

"It is overly-charitable to call

this a 'failure to disclose,'" said

a court source with direct

knowledge on the matter but

not authorized to speak on the

record. "The disclosure never

occurs. This is unwritten policy

and it amounts to

institutionalized concealment of

conflict issues that by law must

be disclosed. Each day that

this continues, more cases are

infected with the error and

subject to challenge."

Sacramento Family Court News has independently

verified that the temporary

judge disclosure is not being

made in cases where one party is unrepresented and the opposing party is represented by a judge pro tem

attorney. One alleged motive is to reduce the chance that a litigant will attempt to disqualify a judge for cause.

"Family court judges are knowingly ignoring the conflict disclosure law because it reduces the odds that a litigant will try to disqualify the judge," the source explained. "This problem also represents a complete failure by court administrators, the Judicial Council, and the Judicial Branch oversight community to train, supervise and discipline family court judges."

In addition to violating state law - including California Rules of Court and the Code of Judicial Ethics - the

concealment effectively deprives a party of the right to challenge the judge - a potentially reversible error that

opens the door to subsequent collateral relief, according to the Judicial Council and the California Judges Association. Without the disclosure, "the judge may have concealed facts that would constitute a successful

challenge to the judge's improper failure to recuse him/herself, thereby effectively depriving the litigant of his/her

CCP 170.3 right to challenge the judge," according the CJA Ethics Opinion No. 45. The Ethics Opinion directive

is mirrored by the Benchguide:

"A judge must disclose on the record information the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for disqualification...The parties should have an opportunity to weigh this information when considering whether to challenge the judge...Even if the parties decide to waive disqualification, disclosure helps ensure that they are fully informed when they do so," according to the Benchguide.

In the context of the disqualification of a judge, the Benchguide emphasizes that no actual bias is required: "If an

The Legal Duty To Disclose

Sacramento Family Court judges are required to disclose on the recordall information relevant to the question of disqualification.

Disclosure vs. Disqualification

COLOR OF LAW SERIES (11)

CONFLICT OF INTEREST (11)

SATIRE (11)

WHISTLEBLOWERS (11)

WOODRUFF O'HAIR POSNER and SALINGER (11)

JAIME R. ROMAN (10)

LAURIE M. EARL (10)

NO CONTACT ORDERS (10)

SHARON A. LUERAS (10)

FERRIS CASE (9)

JESSICA HERNANDEZ (8)

ROBERT O'HAIR (8)

CANTIL-SAKAUYE (7)

JULIE SETZER (7)

MATTHEW HERNANDEZ (7)

YOUTUBE (7)

3rd DISTRICT COA (6)

CIVIL RIGHTS (6)

CHRISTINA ARCURI (5)

CONTEMPT (5)

MIKE NEWDOW (5)

THADD BLIZZARD (5)

FAMILY LAW FACILITATOR (4)

LUAN CASE (4)

MALPRACTICE (4)

THOMAS M. CECIL (4)

CHILD ABDUCTION (3)

VANCE W. RAYE (3)

VEXATIOUS LITIGANT (3)

RACKETEERING (2)

Electronic Frontier Foundation

First Amendment Coalition

WE SUPPORT

average person could entertain doubt about the judge's impartiality, disqualification is mandated," according to

section 2.16 of the Benchguide. In addition, under Code of Civil Procedure §170.1(a)(6) bias may be implied

between a party and a judge that is not otherwise a statutory ground for disqualification, according to section 2.19 of the Benchguide. If bias or other conflicts are present, a judge must self-disqualify.

Sacramento Family Court News was recently leaked court documents showing examples where judges

disqualified themselves because they believed their recusal "would further the interests of justice" or because "a

person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." Click

here, here and here to view the court records.

The egregious nature of the problem in Sacramento Family Court, and the distinction between disqualification and

disclosure is illustrated by an actual disclosure provided by a whistleblower and filed by Sacramento County Superior Court Judge Richard K. Sueyoshi. Upon being assigned a civil case at the downtown, Gordon D. Schaber Courthouse, the judge complied with state law and disclosed to the parties and attorneys - on the record - any potential conflict of interest issues. In a minute order, the judge wrote:

"Upon review of the information provided by the parties, the court finds no grounds for its disqualification under Civil Procedure Code section 170.1. While it finds no basis for disqualification, the court, in an abundance of caution, discloses to all parties the following facts relating to [defendant's] counsel: (1) Prior to joining the bench, the court served as chair of a county bar committee for which [defendant's attorney] served as a committee member. The court's prior contact with [defendant's attorney] was limited to such context. (2) The court currently serves as a member of the Strategic Evaluation Committee, which was formed by the Chief Justice in March 2011 to evaluate and make findings and recommendations to improve the efficiency of the Administrative Office of the Courts." Click here to view the order.

Judge Sueyoshi disclosed a potential conflict with an attorney who he served with on a county bar committee

before he became a judge. Sacramento Family Court judges currently, as sitting judges, meet monthly with the

controversial Sacramento County Bar Association Family Law Executive Committee, and often attend and

speak at the monthly luncheon meetings of the Bar Association Family Law Section.

All of the attorneys on the Executive Committee and many in the Family Law Section also serve as temporary

judges in the same court. Yet the full-time family court judges do not disclose this critical information to opposing

parties and attorneys as required by state law. For additional information about the troubling monthly meetings of

judges, court administrators, and the Family Law Executive Committee, click here.

A self-evident potential conflict of

interest exists when a private, for-

profit attorney representing a client

appears in a court where the same

lawyer also serves as a volunteer temporary judge.

The full-time judge hearing the case is

responsible for disclosing the

potential conflict to the opposing party

or attorney.

The disclosure is required by state

law, including Code of Civil Procedure Sec. 170.1, Canon 2A and subsections of Canon 3 of the

Code of Judicial Ethics, and

the California Rules of Court Standards for Judicial Administration, Standard 10.20.

The reasons for the disclosure include

ensuring that courtroom proceedings

are conducted free of conflicts of

interest and in a manner that is fair

and impartial to all participants, and

The Flagrant Disclosure Problem

The Conflict

Californians Aware

Family Law Professor Blog

Law Librarian Blog

Law Professor Blogs

Thurman Arnold Family Law Blog

Kafkaesq

Above the Law

The Divorce Artist

LAW BLOGS WE LIKE

California Lawyer Magazine

Courthouse News Service

Metropolitan News Enterprise

California Official Case Law

Google Scholar-Includes Unpublished Case Law

California Statutes

LEGAL NEWS & INFORMATION

California Courts Homepage

California Courts YouTube Page

Judicial Council

Commission on Judicial Performance

Sacramento County Family Court

3rd District Court of Appeal

State Bar of California

State Bar Court

Sacramento County Bar Association

CALIFORNIA JUDICIAL BRANCH

ABA Family Law Blawg

Local & National Family Court-Family Law Sites & Blogs (may be gender-specific)

providing an opposing party all

information necessary to make an

informed decision whether to seek

disqualification of the judge,

according to several authorities,

including Canons 3B(5), 3E(2), and

the Judicial Council California Judges Benchguide.

"A judge must disclose on the record information the judge believes the parties or their attorneys might consider relevant to the question of disqualification, even if the judge believes there is no actual basis for the disqualification...the parties should have an opportunity to weigh this information when considering whether to challenge the judge," according to the Benchguide.

The language of Canon 3E(2) mirrors the Benchguide:

"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."

In addition, under CCP §170.1(a)(6), bias may be implied from a connection between a party and a judge that is not

a statutory ground for disqualification under CCP §170.1, according to the Benchguide. The conflict disclosure is

considered so critical that it should even be made when the attorney in question is not a judge pro tem, but works

at a law firm where another member of the firm is a temporary judge, according to a 2001 Ethics Update from the

California Judges Association.

And under the Code of Judicial Ethics, every judge pro tem attorney must take or initiate appropriate corrective

action if they become aware that another judge has violated any provision of the Code. Click here. To view a

Judicial Council directive about required corrective actions, click here. There is no known case of a temporary

judge attorney complying with this important, self-policing requirement.

The California Commission on Judicial Performance has disciplined judges for violating the Code of Judicial Ethics provisions that apply to conflicts of interest. Click here for examples of CJP conflict of interest disciplinary

decisions.

The Ethics Committee of the California Judges Association provides all judges – both full-time and temporary –

with advisory Ethics Opinions and Judicial Ethics Updates. The updates have been cited by the California Supreme Court, appellate courts, and the Commission on Judicial Performance. The Judicial Council uses CJA Ethics Opinions in the California Judges Benchguide. The California Code of Judicial Ethics is partly based on the former CJA Code of Judicial Conduct, which was the original judicial standards code in the state.

Sacramento Family Court judges failure to disclose judge pro tem conflict issues jeopardizes hundreds of orders & judgments.

Judge Pro Tem Conflict Disclosure History

Directory

California Coalition for Families and Children

California Protective Parents Association

Center for Judicial Excellence

Courageous Kids Network

Divorce & Family Law News

Divorce Corp

Divorced Girl Smiling

Family Law Case Law from FindLaw

Family Law Courts.com

Family Law Updates at JDSupra Law News

Fathers 4 Justice

HuffPost Divorce

Leon Koziol.Com

Moving Past Divorce

News and Views Riverside Superior Court

Weightier Matter

Total Pageviews

1 9 0 2 8 3

In an Ethics Update issued in February,1992, the committee advised that full-time judges do not have to

disqualify themselves when an attorney who also acts as a temporary judge in the same court appears before the

judge. The 1992 Ethics Update advised that a judge should disclose knowledge of the attorney’s judge pro tem

service to all parties and other attorneys.

In essence, the full-time judge is hearing a case in which a colleague - a part-time judge in the same court - is acting as a private, for-profit attorney. A judge who fails to disclose her or his knowledge that the attorney is a

judge pro tem may violate Canons 2, 3C(1) and 3D of the Code of Judicial Ethics, according to the 1992 Ethics Update, which was based on the 1992 version of the Code of Judicial Ethics.

The Code of Judicial Ethics was updated in 1996. The revision changed the disclosure requirement from being

optional ("judge should disclose"), to being mandatory ("judge shall disclose"). Since 1996, disclosure of potential

conflict issues on the record is not optional. CJA emphasized the significance and ramifications of the change in

Ethics Opinion No. 45, issued in January, 1997.

"If the judge fails to disclose...the judge may have concealed facts that would constitute a basis for a successful challenge to the judge's improper failure to recuse him/herself, thereby effectively depriving the litigant of his/her CCP 170.3 right to challenge the judge," according to

the CJA Opinion.

In a March, 2001 Ethics Update, CJA advised judges to apply a similar standard when an attorney serves pro tem

in the judge’s court and a member of the attorney’s firm appears before the judge. CJA warned judges that failing

to make the disclosure on the record may violate Canon 3 of the Code of Judicial Ethics. Canon 3E requires that "In all trial court proceedings, a judge shall disclose on the record information that is reasonably

relevant to the question of disqualification...even if the judge believes there is no actual basis for disqualification."

Sacramento Family Court judges who fail to disclose judge pro tem attorney conflicts also may be in violation of

other state and federal laws, according to courthouse sources. As Sacramento Family Court News reported in 2011, in September of that year the California Whistleblower Protection Act was revised to encompass the

Judicial Branch of government, including judges, administrators and court employees.

The conflict of interest disclosure issue may constitute an improper governmental activity under the Act. Willful

omission to perform duty and activities that are economically wasteful, involve gross misconduct, incompetency or

inefficiency are all included in the definition of an improper governmental activity.

The massive scope of the conflict of interest disclosure problem may expose the court to financial liability in a civil lawsuit for the deprivation of civil and constitutional rights and other grounds. Federal criminal statutes also may

apply. Federal criminal law prohibits conspiracy against civil rights and deprivation of rights under color of law.

Sacramento Family Court receives federal funding, and court users have a federally protected right to honest

services. Family court judges and administrators who fail to provide honest services to the public may be subject

to criminal prosecution under federal law.

Click here to view the list of attorneys who also serve as volunteer temporary judges.

Sacramento Family Court News acknowledges the anonymous sources who initially provided us with information for this article. We appreciate the tips. To send us

your anonymous tip by email, use our Contact Page. All communications are protected by the reporter's privilege and the California Shield Law. For further details

about our confidentiality policy, see our About Page and our Terms & Conditions Page. This is an updated version of an article originally published in April, 2012.

Related Content:* What the Temporary Judges Do - Watchdogs Claim Pro Tems Get Preferential Treatment & Court Runs Two-Tiered System

* Sacramento Family Court Temporary Judge List

Code of Judicial Ethics 1996 Revision

Other State and Federal Laws

183

PR Brown

Follow

Google+ Badge

3rd DISTRICT COA (6)

ADA (11) AGGREGATED NEWS (15) ANALYSIS (38)

APPEALS (11) ARTHUR G.

SCOTLAND (5) ARTS & CULTURE (23)

ATTORNEY MISCONDUCT (37) ATTORNEYS (11) BAR ASSOCIATION (11)

CANTIL-SAKAUYE (7) CARLSSON CASE (12)

CHARLOTTE KEELEY (19)

CHILD CUSTODY (23)

CHRISTINA ARCURI (5) CHRISTINA VOLKERS (7) CIVIL RIGHTS (6)

CJP (21) CODE OF JUDICIAL ETHICS (12)

COLOR OF LAW SERIES (11) CONFLICT OF INTEREST (11)

CONTEMPT (5)

Labels

2011 SACRAMENTO/MARIN AUDITS (2)

AB 1102 (1) AB 590 (1) ABA JOURNAL (1) ABOVE THE LAW (1)

ADMINISTRATORS (4)

AL SALMEN (1)AMERICAN BAR ASSOCIATION (1)

ANDY FURILLO (2) AOC (1)

ARCHIBALD CUNNINGHAM (1)

ATTORNEY (4) ATTORNEY DISCIPLINE (4) ATTORNEY ETHICS (2)

BARACK OBAMA (1) BARTHOLOMEW and WASZNICKY (3) BUNMI AWONIYI (1) CALIFORNIA JUDICIAL CONDUCT HANDBOOK (1) CALIFORNIA LAWYER (1)

CALIFORNIANS AWARE (1)CAMILLE HEMMER (3)

CECIL and CIANCI (2) CEO (4)

CHILD ABDUCTION (3)

CHILD SUPPORT (4)

CIVICS (1)CIVIL LIABILITY (1)

CJA (3) CJE (2) CJEO (1)

ClientTickler (2) CNN (1)

CODE OF SILENCE (2) COLLEEN MCDONAGH (3)

CONSTITUTIONAL RIGHTS (3)

CORRUPTION (1) COURT

Investigative Reporting, News, Analysis, Opinion & Satire

Sacramento Family Court NewsHOME TEMPORARY JUDGE CONTROVERSY 3rd DISTRICT COA CONTROVERSY

TANI G. CANTIL-SAKAUYE ATTORNEY MISCONDUCT SOURCE MATERIAL ARCHIVE RoadDog SATIRE

ABOUT SFCN CONTACT FAMILY COURT NEWS Terms & Conditions Privacy Policy

15 July 2014

Judge Robert Hight Misconduct: Supreme Court Committee Confirms Systemic Judge Pro Tem Conflict of Interest Disclosure Law Violations

An attorney and Sacramento Family Court News reader provided the California Supreme Court Committee on Judicial Ethics Opinions Formal Opinion embedded at the bottom of this post. The opinion provides yet another

legal reference specifying that family court judges must disclose potential conflicts of interest on the record. At

court hearings where no court reporter is present, the disclosure must be in writing, according to the CJEO.

To continue reading, click Read more >> below:

In our original May, 2013 investigative report, we provided the legal authority, including Judicial Ethics Updates and Ethics Opinions from the California Judges Association requiring judges to disclose to opposing parties

and attorneys when a judge pro tem attorney represents a client in court. As we reported at that time, in violation

of state law family court judges were failing to make the required disclosure. The violations remain ongoing, and

hundreds of cases are tainted by the error. Sacramento County Superior Court Presiding Judge Robert Hight is responsible for the oversight of temporary judges, according to the CJA, the Code of Judicial Ethics and

other authority. Click here to view our 2013 report.

Click to visit Sacramento Family Court News on: Facebook, YouTube, Google+, Scribd, Vimeo, and Twitter. For additional reporting on the people and issues in this post, click the corresponding labels below the document:

Family Court Judge Pro Tem Conflict of Interest Disclosure Law - California Supreme Court Committee on

Sacramento Superior Court Judges Continuing Failure To Disclose Judge Pro Tem Conflicts Violates Supreme Court Committee on Judicial Ethics Opinions Directive

In May, 2013 Sacramento Family Court News reported that family court judges were violating state law by failing to disclose to opposing parties when a judge pro tem represents a client in court. The violations remain ongoing.

JUDICIAL MISCONDUCT (72)

JUDGE PRO TEM (51)

ATTORNEY MISCONDUCT (37)

MATTHEW J. GARY (34)

KICKBACKS (33)

FLEC (28)

PETER J. McBRIEN (26)

ARTS & CULTURE (23)

CHILD CUSTODY (23)

ROBERT SAUNDERS (22)

SCBA (22)

CJP (21)

JAMES M. MIZE (21)

CHARLOTTE KEELEY (19)

EMPLOYEE MISCONDUCT (19)

WATCHDOGS (19)

PRO PERS (18)

DIVORCE CORP (17)

DOCUMENTS (17)

PAULA SALINGER (15)

ROBERT HIGHT (14)

SACRAMENTO SUPERIOR COURT (13)

CARLSSON CASE (12)

RAPTON-KARRES (12)

APPEALS (11)

SHORTCUTS TO POPULAR SUBJECTS AND POSTS

3 More Next Blog» Create Blog Sign In