Kaufman v. Court of Appeal

Decision Date19 July 1982
Citation647 P.2d 1081,184 Cal.Rptr. 302,31 Cal.3d 933
Parties, 647 P.2d 1081 Marcus M. KAUFMAN, as Associate Justice, etc., Petitioner, v. The COURT OF APPEAL, FOURTH APPELLATE DISTRICT, Respondent; AGRICULTURAL LABOR RELATIONS BOARD et al., Real Parties in Interest. L.A. 31421.
CourtCalifornia Supreme Court

Ronald A. Zumbrun, John H. Findley and Joseph E. Maloney, Sacramento, for petitioner.

No appearance for the respondent.

Manuel M. Medeiros, Nancy Smith, Daniel G. Stone, Dianna Lyons, Sacramento, Francis E. Fernandez, Carmen S. Flores, Daniel A. Garcia, Marco E. Lopez, Carlos M. Alcala, Federico G. Chavez and Ellen J. Eggers, Keene for real parties in interest.


The petitioner is Marcus Kaufman, Associate Justice of Division Two in the Fourth District of the California Courts of Appeal. He requests that we nullify three orders dated April 6, 1981 (filed on April 13) that purportedly were issued on behalf of Division Two and were signed by his assigned colleague, retired Supreme Court Associate Justice Louis Burke. The orders concern nine proceedings pending in that court wherein the Agricultural Labor Relations Board (ALRB) is a party respondent.

Each of the three orders commands that Justice Kaufman "not sit or act in the above-entitled [Court of Appeal] proceedings." Why? Because "[i]t has been made to appear probable that, by reasons of bias and prejudice ..., a fair and impartial hearing cannot be had before him and, therefore, the Disqualification of Associate Justice Marcus M. Kaufman is sustained and allowed ...." Two of the declarations seeking disqualification had been filed by the ALRB assistant chief of litigation; the third, by counsel for the United Farm Workers of America (UFW).

Justice Burke made no statement of findings or reasons other than that quoted in the preceding paragraph. He cited no precedents; the only statutes mentioned are Code of Civil Procedure sections 170, subdivision 5, 473, and 576. He noted that he had been "assigned to the above-entitled Court [Division Two] as a Justice thereof by Order of the Honorable Rose Elizabeth Bird, Chief Justice of California and Chairperson of the Judicial Council, to hear and determine the issue of disqualification ...."

A. Code of Civil Procedure section 170.

On January 22 and February 9, 1981, the Clerk of the Fourth District Court of Appeal in letters addressed to the Chairperson of the Judicial Council requested "that a judge be appointed to hear and determine the question of disqualification pursuant to the fifth paragraph under Sub. 5 of C.C.P. 170 at a time and place so designated by the appointed judge." On March 18 he received a response from the Judicial Council's judicial assignments supervisor wherein he was advised as follows: "Your letters of January 22, 1981 and February 9, 1981, requesting the assignment of a judge to act upon the motions to disqualify Justice Marcus M. Kaufman in the above-entitled actions were referred to the Administrative Director of the Courts and Secretary to the Judicial Council, Ralph J. Gampell. As you know, Mr. Gampell wrote to Justice Kaufman and to all parties in these matters. [p] After reviewing the responses, Mr. Gampell has asked the Chief Justice to assign a judge to determine the disqualification issue. [p] The Honorable Louis H. Burke, retired Associate Justice of the Supreme Court, has been assigned to the Court of Appeal, Fourth Appellate District, Division Two from March 11, 1981 to April 11, 1981, to assist with these matters. The original of the assignment is enclosed."

That assignment by the Chief Justice and Judicial Council Chairperson reads: "THE HONORABLE LOUIS H. BURKE, retired Associate Justice of the Supreme Court of California, is hereby assigned to assist the Court of Appeal, Fourth Appellate District, Division Two as a Justice thereof, from March 11, 1981 to April 11, 1981, and until he has completed and disposed of all causes and matters submitted to him, and all petitions for rehearing arising out of such causes and matters."

The clerk's request and the chairperson's response appear to be attempts to comply with these words of Code of Civil Procedure section 170: "[T]he question of the judge's disqualification shall be heard and determined by some other judge agreed upon by the parties who shall have appeared in the action or proceeding, or, in the event of their failing to agree, by a judge assigned to act by the Chairman of the Judicial Council, and, if the parties fail to agree upon a judge to determine the question of the disqualification, within five days after the expiration of the time allowed herein for the judge to answer, it shall be the duty of the clerk then to notify the Chairman of the Judicial Council of that fact; and it shall be the duty of the Chairman of the Judicial Council forthwith, upon receipt of notice from the clerk, to assign some other judge, not disqualified, to hear and determine the question." 1

Do those words of section 170 apply to appellate judges ?

Fifty years ago, after noting that for thirty earlier years California had left the question of bias to be determined solely by the challenged judge, a commentator reported: "Section 170 ... was changed by the Legislature in 1927 in a number of material respects, and particularly in regard to who is authorized to pass on the question of the disqualification of THE TRIAL JUDGE because of his alleged bias or prejudice." (Comment, Judges: Disqualification for Bias: Cal.Code Civ.Proc. § 170 (1932) 20 Cal.L.Rev. 312, 313, emphasis added.)

Yet the last paragraph of this court's per curiam opinion in Giometti v. Etienne (1934) 219 Cal. 687, 689, 28 P.2d 913 reads: "Petitioners also suggest that section 170 of the Code of Civil Procedure does not apply to justices of appellate tribunals, and that the sole ground for this disqualification is stated in section 170a, providing that none may act in any cause which he tried in a lower court. There is nothing in the statute to indicate such a limited interpretation, and without express legislative exception, appellate judges must be deemed subject to the rules applicable to judges generally." (Italics added.)

In that last sentence, what exactly was meant by the words "appellate judges must be deemed subject to the rules applicable to judges generally"? Clearly the court was discussing the grounds for disqualification, not the appropriateness of or requirements for disqualification procedures. (See the first of the two quoted Giometti sentences.)

We have found no citable precedent where any Court of Appeal justice or justices undertook to disqualify a colleague. 2 Further, during the past 55 years--so far as we have been able to ascertain--only rarely have appellate justices who disqualified themselves made any declarations and filed memoranda pursuant to these words in the first unnumbered paragraph that follows Code of Civil Procedure section 170, subdivision 5: "Whenever a judge or justice shall have knowledge of any fact or facts, which, under the provisions of this section, disqualify him to sit or act as such in any action or proceeding pending before him, it shall be his duty to declare the same in open court and cause a memorandum thereof to be entered in the minutes or docket." (Italics added, and note particularly the words "in open court.")

The first sentence of Code of Civil Procedure section 170, and also of its subdivision 5, contain the phrase "justice or judge." Together those two sentences read: "No justice or judge shall sit or act as such in any action or proceeding ... 5. When it is made to appear probable that, by reason of bias or prejudice of such justice or judge a fair and impartial trial cannot be had before him." (Italics added.) Appellate justices rarely conduct "a ... trial" of the kind the Legislature seems to have had in mind. Further, their formal proceedings are before a multiple-person court, not "before him." The words "trial," "before him," "before another judge," and "some other judge" nonetheless appear in all but one of the six unnumbered paragraphs. The penultimate paragraph of those unnumbered six concludes, "when there are two or more judges of the same court, one of whom is disqualified, the action or proceeding may be transferred to a judge who is not disqualified." (Italics added.) That clause certainly applies to trial courts only.

If the words of section 170 were applied to an appellate judge, what exactly would be the progression of events? Pursuant to the third unnumbered paragraph, for example, should he file with the clerk "his consent in writing that the action or proceeding be tried before another judge" (italics added)? (See too the introductory clause of the fifth unnumbered paragraph.) Would the cut-off date for counsel's objection be "the commencement of the hearing of any issue of fact in the action or proceeding before such judge" (see fourth unnumbered paragraph; italics added)? Appellate justices rarely hear issues of fact.

Similarly, were we to uphold Justice Burke's three orders, should our command (pursuant to the fifth unnumbered paragraph) be that the proceedings now therefore be "heard and determined by another judge or justice not disqualified ..."? (See sixth unnumbered paragraph.) Substantially all words in the fifth unnumbered paragraph seem to imply a legislative concern with single-judge courts only.

In sum, though section 170 has been amended more than 20 times since 1927, notwithstanding all those amendments (perhaps in part because of them) the directions as to procedure remain murky. Based on the bulk of the statute's words and reinforced by both contemporaneous comment and the history of their never having been applied to appellate judging from 1927 (when the words were enacted) until 1979, our interpretation is that all six of the unnumbered...

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