United Farm Workers of America v. Superior Court

• Decision Date: 16 July 1985
• Docket Number: AFL-CI,P
• Citation: 216 Cal.Rptr. 4,170 Cal.App.3d 97
• Court: California Court of Appeals Court of Appeals
• Parties: UNITED FARM WORKERS OF AMERICA,etitioner, v. SUPERIOR COURT, etc., County of Imperial, Respondent; MAGGIO, INC., Real Party in Interest. D003238.

Page 4

216 Cal.Rptr. 4

170 Cal.App.3d 97

UNITED FARM WORKERS OF AMERICA, AFL-CIO, Petitioner, v. SUPERIOR COURT, etc., County of Imperial, Respondent MAGGIO, INC., Real Party in Interest.

D003238.

Court of Appeal, Fourth District, Division 1, California.

July 16, 1985.

Review Denied October 3, 1985.

Ellen J. Eggers and Lyons, Eggers, Garcia & Gottlieb, Keene, for petitioner.

Jay W. Jeffcoat, John Allcock and Gray, Cary, Ames & Frye, San Diego, and Ronald M. Barsamian, Newport Beach, Larry Dawson, El Centro, and Dressler, Quesenberry, Laws & Barsamian, Newport Beach, for real party in interest.

WIENER, Acting Presiding Justice.

This mid-trial petition for peremptory writ of mandate seeking to disqualify the trial judge (Lehnhardt) presents the interesting and sensitive question of judicial recusal under newly enacted Code of Civil Procedure sections 170.1-170.5 specifically 170.1, subdivision (a)(6)(C). ¹ (Stats.1984, ch. 1555.) We say interesting because this proceeding touches upon the core of the judicial process--the appearance of objectivity of the decision maker--requiring a careful balancing of the affected interests. Our decision must consider both the public's right to be assured of the fair, but yet efficient, resolution of disputes and the parties' right to a decision based upon the court's objective evaluation of the facts and law. (See In re United States (1st Cir.1981) 666 F.2d 690, 694.) The tension between the appearance of fairness and efficiency should be self-evident. The difference between the appearance of fairness generally and the perception of fairness as seen by a party or his or her counsel should also be self-evident. With ever-mounting litigation, judicial disqualification will undoubtedly continue to increase since judge shopping before trial is now a way of life. We also suspect that judicial disqualification during trial will increase. This case is not the vehicle either to criticize or to condone such litigation tactics, we understand a particular judge's personality can "make a world of difference when it comes to rulings on evidence, the temper of the courtroom, the tolerance for a proffered defense, and the like." (Chandler v. Judicial Council (1970) 398 U.S. 74, 137, 90 S.Ct. 1648, 1680, 26 L.Ed.2d 100 (dis. opn. of Douglas, J.).) Nonetheless the proper performance of judicial duties does not require a judge to withdraw from society and live an ascetic, antiseptic and socially sterile life. Judicial responsibility does not require shrinking every time an advocate asserts the objective and fair judge appears to be biased. The duty of a judge to sit where not disqualified is equally as strong as the duty not to sit when disqualified. (See Laird v. Tatum (1972) 409 U.S. 824, memorandum of Rehnquist, J. at p. 837, 93 S.Ct. 7 at p. 14, 34 L.Ed.2d 50.) On the facts of this case, we deny the writ.

I

Maggio, Inc. real party in interest, sued the United Farm Workers of America, AFL-CIO (UFW) for substantial damages arising out of union activity in connection with a strike in early 1979.

The case started March 5, 1985. Four weeks were devoted to jury selection. Counsel energetically conducted voir dire to eliminate those jurors who could not be impartial because of their strike views. Eventually, the parties gave up, waived jury and stipulated on March 27, 1985, to a court trial before Judge Lehnhardt. On May 24, 1985, in what UFW's petition alleges to be "an informal off-the-record conversation," Judge Lehnhardt mentioned to UFW counsel that his wife had volunteered for and worked two to three days as a replacement worker in a carrot shed owned by Maggio.

On May 30, 1985, the UFW moved to disqualify Judge Lehnhardt. ² The motion recited:

"Judge Lehnhardt failed to disclose that his wife had worked as a strikebreaker for the Plaintiff, during the 1979 strike.... Said failure to disclose prevented Defendant from exercising an informed CCP § 170.6 peremptory challenge, and caused Defendant to make an uninformed waiver of Defendant's constitutional right to a jury trial. The undisclosed facts, as well as the failure to disclose those facts would cause a person to reasonably entertain a doubt that Judge Lehnhardt would be able to be impartial in this case."

The motion attached a "Declaration and Argument of Jay D. Gould," a UFW lawyer, which repeats Judge Lehnhardt's statement and urges disqualification based on Judge Lehnhardt's failure to disclose his wife's activity and the fact of the work itself.

Also attached to the motion was a supporting declaration by Cesar Chavez, president of the UFW, who averred he had been told of Mrs. Lehnhardt's work for Maggio and had the Union known of this at the commencement of trial, the Union would not have waived jury.

Also attached was a joint declaration of ten persons identifying themselves as farmworkers represented by the UFW, averring they were aware the lawsuit sought money from the UFW because of the 1979 vegetable strike and were aware the UFW allowed Judge Lehnhardt to determine that issue. The declaration then recited:

"We have learned that Judge Lehnhardt recently told our attorneys that his wife worked as a strikebreaker for Mr. Maggio during the strike.

"Because Judge Lehnhardt failed to tell us about his wife's employment, and because his wife worked for Mr. Maggio we do not believe that Judge Lehnhardt will be impartial.

"We further believe that if Judge Lehnhardt decides that our Union should pay money to Mr. Maggio, the Judge's decision may be based on his wife's relationship to Maggio.

"We believe that Judge Lehnhardt should have told our attorneys about his wife before the trial started.

"We have spoken to many members of our community and they have expressed the same concern about whether Judge Lehnhardt would be impartial in this case."

Judge Lehnhardt denied the motion and it was therefore referred to Judge Chaille by agreement of the parties. (See § 170.3, subd. (c)(5).) Judge Lehnhardt filed a responsive declaration and answer in which he explained that he had forgotten about his wife's work in Maggio's carrot shed until some testimony at trial regarding replacement workers refreshed his recollection.

Judge Chaille advised the parties the disqualification motion would be decided based "entirely on the declarations submitted by [the UFW] and Judge Lehnhardt." (See generally Garcia v. Superior Court (1984) 156 Cal.App.3d 670, 677-678, 203 Cal.Rptr. 290, quoting Bixby v. Hotchkis (1945) 72 Cal.App.2d 368, 373-374, 164 P.2d 808.) He found Mrs. Lehnhardt did work for Maggio for two days in 1979, Judge Lehnhardt had forgotten the incident and, after 32 days of trial, then remembered and called it to the attention of counsel. Judge Chaille concluded:

"[T]here is no evidence that Judge Lehnhardt had anything to do with the 2-day workday [sic] of his wife and he knew about it at the time and I fail to see in modern society where this would advocate any impropriety or influence the judge might feel in deciding this case.

"The court specifically finds there is no reason why a person would reasonably entertain a doubt that the judge would be unable to be impartial because six years ago the judge's wife worked for plaintiff for a period of two days."

Following Judge Chaille's ruling, the UFW filed this petition for writ of mandate.

II

In 1984, sections 170, 170a and 170.1 regarding disqualification of judges for bias or cause were replaced by sections 170.1-170.5. (Stats.1984, ch. 1555.) Support for the newly enacted statute came from the California State Bar whose Committee on Administration of Justice drafted the initial provisions. For the most part, the revision was an effort to clarify and simplify the previous law by adding concepts and language from the Code of Judicial Conduct prepared by a special ABA committee chaired by former Chief Justice Traynor (Traynor Code) in 1972 and adopted by the California Judges Association in 1975.

A

We are unaware of any cases attempting to interpret and apply the new section 170.1. As noted, however, it was based on concepts contained in the Traynor Code which includes a provision analogous to subdivision (a)(6)(C), requiring disqualification of a judge where "his impartiality might reasonably be questioned." (ABA Code of Judicial Conduct, Canon 3C.) This objective approach to the question of judicial partiality also served as the genesis for a corresponding federal statute, 28 U.S.C. § 455(a) adopted by Congress in 1974, which provides that "[a]ny ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned...." (See generally State of Idaho v. Freeman (D.Idaho 1981) 507 F.Supp. 706, 717-719.)

Section 170, which introduces the disqualification statutes, is a new section expressing the proposition we noted earlier that "[a] judge has a duty to decide any proceeding in which he or she is not disqualified." The legislative history shows this section was prompted by statements suggesting that certain judges did not believe they had such a duty. (See Olson v. Cory (1980) 27 Cal.3d 532, 576-578, 178 Cal.Rptr. 568, 636 P.2d 532.) Thus, the section serves to remind judges of their duty to hear cases which are controversial and might subject them to public disapproval as well as to protect them from public criticism by a clear statement of their responsibility.

For our purposes, the key change in the new statutes is found in subdivision (a)(6)(C) of section 170.1 which provides for disqualification whenever a judge's impartiality might reasonably be questioned. (Ante, fn. 1.) This subdivision changes the law in that the previous corresponding statute, section 170, subdivision (a)(5) (repealed by Stats.1984, ch. 1555, § 2), which could be read as applying to the appearance of bias, had been construed to require bias in fact. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal.3d 781, 792-793, 171 Cal.Rptr. 590, ...