By Sydney M. Mehringer

Sydney is a Deputy City Attorney in the Brady, Ethics & Compliance Unit in the Criminal Branch of the Los Angeles City Attorney’s Office. The opinions expressed in this article are solely those of the author and not of the City Attorney’s Office.

Introduction

Stop me when this sounds familiar: Judge X calls a case and Mr. Y is the opposing counsel. The judge says “I just need to make a disclosure about Mr. Y. He made a financial contribution to my last judicial campaign. I believe I can be fair and impartial in this case.” Judge X then asks if you if want to say anything or if you have any questions. You say “no” and the case proceeds along. Or maybe Judge X does not even give you a chance to interject and just carries on with the proceedings. Again, you say nothing.

Perhaps we never say anything because we do not want to appear that we are being confrontational with a judge or appear that we are questioning the judge’s ability to be fair and impartial. Perhaps we never say anything because we do not know what questions to ask. Most of the time, the disclosures about campaign contributions do not impact the case and there is no reason to think that the judge cannot be fair. But what if you do end up in trial in front of Judge X and with Mr. Y and you notice that the legal rulings seem a little off and appear to favor Mr. Y? Doubt starts to creep into your mind. “I wonder just how much money Mr. Y gave to Judge X?” You also recall that one time when you saw Mr. Y go back to Judge X’s chambers, or maybe you saw Judge X and Mr. Y conversing at the bench in a comfortable manner. You realize: “Maybe I shouldn’t have been to so quick to dismiss the judge’s disclosure. Maybe I should have asked some follow up questions.” Well, here are the rules about judicial campaign contribution disclosures to arm you with the tools you need to make informed decisions.

What Must Be Disclosed?

First, let’s start with what a judge is required to disclose regarding campaign contributions. Most judges give a very generic judicial campaign contribution disclosure similar to the one in the hypothetical. But they should not. In fact, the required disclosure must be quite specific: a judge who is or was a candidate for judicial office has an ethical and statutory duty to disclose any campaign contribution or loan of $100 or more if the contribution or loan was made by a party, individual lawyer, or law office or firm in the matter. Canon 3E(2)(b)(i)[1] requires disclosure of any campaign contribution of $100 or more. Code of Civil Procedure section 170.1, subdivision (a)(9)(C), requires that a judge disclose any contribution that is required to be reported by Government Code section 84211, subdivision (f), which currently requires that any campaign contribution of $100 or more is reported in a campaign statement.

To comply with Code of Civil Procedure section 170.1, subdivision (a)(9)(C) and Canon 3E(2)(b)(i), the judge must disclose the following information:

• the contributor’s or lender’s full name;
• the amount of each contribution or loan;
• the date of each contribution or loan; and
• the cumulative amount of the contributor’s contributions or lender’s loans.

(Canon 3E(2)(b)(i).)[2]

How Must the Disclosure Be Made?

Second, the disclosure must be on the record. (Canon 3E(2)(b)(ii).) The judge has discretion to select the manner of disclosure but must avoid the appearance that the judge is soliciting campaign contributions. (Ibid.) If there is a court reporter or electronic recording, the judge can make the disclosure in open court when the reporter is transcribing the proceedings or when the recording is being made. (Advisory Com. com. foll. canon 3E(2)(b); CJEO Formal Opinion 2019-013 (2019), Disclosure of Campaign Contributions in Trial Court Elections, Cal. Supreme Ct. Com. Jud. Ethics Opns., p. 15.) Alternatively, the judge can make the disclosure in a written minute order and notify the parties of the written disclosure. (Advisory Com. com. foll. canon 3E(2)(b).)

When and for How Long Must the Disclosure Be Made?

Third, the judge must make the disclosure “at the earliest reasonable opportunity.” (Canon 3E(2)(b)(iii).) For example, Judge X should make the disclosure at the very first court appearance in each case where Mr. Y appears. If the contribution was made in connection with a judge’s initial campaign for judgeship, in each case where Mr. Y appears the judge must make the disclosure for two years after taking the oath of office. (Canon 3E(2)(b)(iii); CJEO Formal Opinion 2019-013, p. 17.) If the contribution was made in connection with a judge’s campaign for reelection, in each case where Mr. Y appears, the judge must make the disclosure for two years from the date of the contribution. (Ibid.)

So, What Questions Should You Ask a Judge In Response to a Campaign Contribution Disclosure and Why Does it Matter?

Let’s circle back to the hypothetical with Judge X and Mr. Y. In order to make an informed decision about the judge’s disclosure, you really want to know the following:

• How much did Mr. Y contribute to Judge X’s campaign?
• How many contributions did Mr. Y make to Judge X’s campaign?
• When did Mr. Y make the contribution(s)?

Mandatory Disqualification Due to the Size of the Contribution

Did you know that some campaign contributions require judicial disqualification based on the size of the contribution? Code of Civil Procedure section 170.1, subdivision (a)(9) states that a judge shall be disqualified if:

The judge has received a contribution in excess of one thousand five hundred dollars ($1500) from a party or lawyer in the proceeding, and either of the following applies:

(i) The contribution was received in support of the judge’s last election, if the last election was within the last six years.

(ii) The contribution was received in anticipation of an upcoming election.

If these circumstances are present, the judge is disqualified, full stop (absent a waiver – discussed below). There is no room for subjectivity. Therefore, if Mr. Y contributed more than $1,500 to Judge X’s most recent past election (or upcoming) campaign, Judge X should disclose and then disqualify herself or alternatively seek a waiver of the disqualification.[3] This is why it is so important to know how much money Mr. Y contributed and when he did so. The dollar amount of the contribution is the difference between mandatory disqualification under the Code of Civil Procedure with no room for input by the judge versus discretionary disqualification where the judge is left to gauge his or her own ability to be impartial.

Should You Agree to Waive the Disqualification?

The mandatory disqualification can be waived. (Code. Civ. Proc., § 170.1, subd. (a)(9)(D) [disqualification may be waived by the party that did not make the contribution].) But should you waive it? The $1,501 + limit is in place for a reason. The legislature has determined that if an attorney contributes that amount or more to a judicial campaign, the judge cannot be fair and impartial, i.e., bias in favor of the contributing party is presumed. Why would you want to stay in a courtroom where the judge is presumptively biased in favor of the opposing counsel? Unless you have a very good reason, you should not waive the disqualification.

Disqualification “For any reason” Based on the Judge’s Belief About Their Own Impartiality

Even if the amount of the contribution is $1,500 or less, a judge may still be disqualified from the matter. However, the judge will decide whether or not to disqualify himself or herself. Code of Civil Procedure section 170.1, subdivision (a)(9)(B) provides that: “…the judge shall be disqualified based on a contribution of a lesser amount if subparagraph (A) of paragraph (6) applies.” Code of Civil Procedure section 170.1, subdivision (6)(A) in turn states that a judge shall be disqualified if:

(i) The judge believes his or her recusal would further the interests of justice; or

(ii) The judge believes there is a substantial doubt as to his or her capacity to be impartial; or

(iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.

In other words, Code of Civil Procedure section 170.1, subdivision (a)(9)(B) allows the judge to make his or her own decision about disqualification based on contributions of $1,500 or less. If the judge determines that they can be impartial, the judge can refuse to disqualify themself from the case. If you disagree with the judge, you can still make a motion to disqualify the judge under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii). Even though the standard for disqualification is an objective one (United Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97, 104), know that you will likely face an uphill battle if you pursue disqualification.

But even if you decide not to pursue a disqualification motion, surely you would rather know if the opposing counsel contributed $150 or $1,500 to a judge. And if the amount is $1,500, that figure was likely strategically selected to be just under the mandatory disqualification amount.

Conclusion

The next time a judge vaguely discloses that the opposing counsel contributed to their judicial campaign, know that you are standing firmly planted in the law and ask the court to make the appropriate record. In order to assist the court in making that record, let the court know that you have some questions. For example, “I would like to know how much Mr. Y contributed and when he made those contributions.” You have a right to know this information. A donation of $150 will probably not make a difference in your case. A donation over $1,500 requires recusal. And a donation of exactly $1,500 should give you pause. Mr. Y likely selected this amount specifically so that he could contribute the maximum amount possible without subjecting Judge X to mandatory disqualification. It is not unreasonable to think there are some hidden biases and favoritism at play. So, if you anticipate that Judge X may have to make a difficult pretrial ruling, such as a ruling on a demurrer or a motion for diversion, or if Judge X will preside over the trial, consider filing a challenge pursuant to Code of Civil Procedure 170.6 against Judge X, if the applicable rules allow. In the context of judicial campaign contributions, what you know cannot hurt you but what you don’t know definitely can.