Wechsler v. Superior Court of San Diego Cnty.

• Decision Date: 04 March 2014
• Docket Number: D064919
• Citation: 224 Cal.App.4th 384,168 Cal.Rptr.3d 605
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth WECHSLER, Petitioner, v. The SUPERIOR COURT of San Diego County, Respondent; Kimberly Wechsler, Real Party in Interest.

224 Cal.App.4th 384

168 Cal.Rptr.3d 605

Kenneth WECHSLER, Petitioner,

v. The SUPERIOR COURT of San Diego County, Respondent;Kimberly Wechsler, Real Party in Interest.

D064919

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

Filed March 4, 2014

See 2 Witkin, Cal. Procedure (5th ed. 2008) Courts, § 118.

Petition for writ of mandate from an order of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Petition denied. (San Diego County Super. Ct. No. DN143293).

Hagar & Cotten and Cary L. Cotten, Vista, for Petitioner.

No appearance for Respondent.

Law Office of Alexandra O'Neill and Alexandra O'Neill; Kimberly Wechsler, in pro. per., for Real Party in Interest.

HALLER, J.

Kenneth Wechsler (Kenneth) filed a writ petition challenging an order denying his motion to disqualify San Diego County Superior Court Commissioner Patti Ratekin from presiding over the dissolution action between Kenneth and his former wife, Kimberly Wechsler (Kimberly). Kenneth moved to disqualify Commissioner Ratekin after learning the commissioner agreed to officiate at Kimberly's counsel's wedding while postjudgment support matters were pending before the commissioner. He sought the disqualification under Code of Civil Procedure section 170.1, which provides a judge shall be disqualified if “a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.” (Code Civ. Proc., § 170.1, subd. (a)(6)(A)(iii) (§ 170.1(a)(6)(A)(iii)).)

Commissioner Ratekin filed a verified answer denying there were grounds for disqualification, and the disqualification motion was assigned to Superior Court Judge Jeffrey Barton. Judge Barton concluded Kenneth did not meet his burden to show a statutory basis for disqualification and denied the motion. Kenneth challenges the ruling in this writ proceeding.

After considering the particular facts before us and applicable law, we determine Commissioner Ratekin's conduct was not a disqualifying event. Under circumstances similar to those here, the California Supreme Court found no appearance of partiality where a trial judge officiated at the wedding of the prosecutor's daughter several months before the judge presided over the defendant's death penalty trial. (People v. Carter (2005) 36 Cal.4th 1215, 1240–1244, 32 Cal.Rptr.3d 838, 117 P.3d 544.) Following Carter,we conclude that when a judge has no personal or social relationship with the attorney and the judge's only role at the wedding is that of an officiant, disclosure is required (Cal.Code Jud. Ethics, canon 3(E)(2)(a)), but disqualification is not mandated absent additional facts.

FACTUAL AND PROCEDURAL SUMMARY

The Wechsler marriage dissolution action was initially filed in September 2006. More than three years later, in January 2010, the matter was assigned to Commissioner Ratekin to preside over postjudgment custody and support matters. During the next several years, the parties had numerous disputes. In 2012, Kimberly filed a motion to increase support payments and both parties raised numerous other related issues. Kenneth was represented by Cary Cotten, and Kimberly was represented by Alexandra O'Neill. After many continuances and the appointment of an accounting expert, the commissioner scheduled a hearing for November 1, 2013 to resolve pending motions.

One week before the November 1 scheduled hearing, both counsel appeared in court for an ex parte hearing regarding Kenneth's request to continue the hearing. As they were waiting to be called, O'Neill told Cotten that Commissioner Ratekin would be officiating at her wedding later in the year (in December 2013). When the Wechsler matter was called, Commissioner Ratekin did not mention her upcoming participation in the wedding, and neither party raised the issue. The court denied Kenneth's continuance request.

Two days later, on October 25, Kimberly filed a declaration and motion seeking additional attorney fees and costs. Three days later, Kenneth's counsel filed a verified statement of disqualification, asserting that Commissioner Ratekin should be disqualified for cause because the commissioner's agreement to officiate in counsel's wedding might lead a person aware of the facts to entertain a doubt about the commissioner's ability to be impartial in handling the case. (§ 170.1(a)(6)(A)(iii).) Specifically, Cotten claimed “any average person would entertain doubts when learning that the Commissioner was personally close enough to one of the attorneys to agree to officiate her wedding while at the same time presiding over a case involving that attorney.”

Commissioner Ratekin filed a verified answer denying there were grounds for disqualification. Commissioner Ratekin said she did not have a personal relationship with O'Neill, and she could and would remain impartial in the action: “I have been acquainted with [Kimberly's] counsel, Ms. O'Neill, for the past few years through her appearances in my court and through our respective appearances at professional legal functions. I am not otherwise acquainted or ‘personally close’ with Ms. O'Neill. [¶] ... Approximately one month ago while I was conducting a settlement conference in another case in which Ms. O'Neill and another attorney appeared as counsel of record, Ms. O'Neill asked if I would perform her wedding ceremony later this year and I agreed. My intention is solely to perform the wedding ceremony and not to stay for any reception. [¶] ... When counsel thereafter appeared ex parte in this case on October 23, 2013, the subject of my performance of the wedding for Ms. O'Neill did not come to my mind. As a result, I did not disclose that I am scheduled to officiate at the ceremony. [¶] ... My officiating at Ms. O'Neill's wedding will have no impact on my handling of this case. [¶] ... I take no offense to this challenge. I believe that I have been and can continue to be impartial to all parties and counsel.”

The matter was assigned to Judge Barton for the limited purpose of ruling on the disqualification motion. (See Code Civ. Proc., § 170.3, subd. (c).) After reviewing the statement of disqualification and Commissioner Ratekin's verified answer, the court denied the motion. The court found Kenneth did not meet his burden to show “a close personal relationship” between O'Neill and Commissioner Ratekin that would “raise doubts regarding Commissioner Ratekin's ability to remain impartial.” The court also noted that the performance of a marriage ceremony is a ministerial act, and not a judicial act requiring the exercise of judicial discretion, citing People ex rel. McDonald v. Bush (1870) 40 Cal. 344.

One week later, Kenneth petitioned for a writ of mandate in this court, contending disqualification was required because of the appearance of partiality under section 170.1(a)(6)(A)(iii). Although Kenneth's challenge in the trial court focused on the purported personal relationship between the commissioner and Kimberly's counsel, in his writ petition he argued primarily that the mere act of officiating at a wedding compels disqualification.

In her response, O'Neill (on behalf of her client) argued disqualification was not required because there is “no close personal relationship existing between the Commissioner and me.” She asserted: “Because Commissioner Ratekin is only appearing at the ceremony, and leaving immediately thereafter, I will not have a chance to speak with her at the ceremony and the expectation is only that she will be supervising the recitation of the vows, exchange of wedding rings and signing the marriage license.” O'Neill also submitted a lengthy supporting declaration. However, O'Neill did not present this declaration in the proceedings below, and Judge Barton did not consider the asserted facts when ruling on the motion. Thus, we cannot consider the declaration in ruling on this writ petition, and we cannot consider facts discussed in Kimberly's opposition that are asserted for the first time in this court.

In reply, Kenneth expanded on his argument that a judge's participation at a wedding created a concern that the judge could not rule fairly and impartially, and noted that many wedding officiants have meaningful personal involvement, such as meeting with the couple to determine their wishes and desires about the ceremony, attending a rehearsal and a rehearsal dinner, and receiving a gift or stipend. Kenneth argued that “an objective observer could reasonably conclude that a Commissioner who agreed to officiate at a litigant's attorney's wedding could be reluctant to rule against that litigant and attorney, especially in light of the various motions for attorney fees [and sanctions] that are at issue.”

Viewing the issue as raising close ethical questions that are likely to recur, we issued an order to show cause. Pursuant to the parties' agreement, we treated the parties' prior written submissions as the formal briefing on the order to show cause.¹

DISCUSSION

I. Governing Legal Standards

A determination on a challenge for cause under section 170.1(a)(6)(A)(iii) “touches upon the core of the judicial process” requiring “the appearance of objectivity of the decision maker....” (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 100, 216 Cal.Rptr. 4 (United Farm Workers ).) A party moving for disqualification need not show actual bias because the Legislature sought to guarantee not only fairness to individual litigants, but also “to ensure public confidence in the judiciary” (People v. Freeman (2010) 47 Cal.4th 993, 1001, 103 Cal.Rptr.3d 723, 222 P.3d 177), which “ ‘ “may be irreparably harmed if a case is allowed to proceed before a judge who appears to be tainted.” ’ ” (In re Kensington International, Ltd. (3d Cir.2004) 368 F.3d 289, 302, italics added [interpreting the analogous federal statute].) A party has the right to an objective decision maker and to a decision maker who appears to be fair and impartial.

Section 170.1(a)(6)(A)(ii...