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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

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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

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electronic recording of the proceedings?

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

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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

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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.

Introduction

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III.

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

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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

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on the record.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.
2

Authorities
A.

Applicable Canons2

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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.

Other Authorities

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B.

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.

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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.

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

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

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

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


the California Code of Judicial Ethics unless otherwise indicated.
3

Discussion

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V.

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

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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

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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, 893894 [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 clerks
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

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

record where there is no record of oral proceedings.


What constitutes a record?

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A.

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

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

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.
4

act of a judicial officer, in an action or special proceeding (Code Civ. Proc., 1904).
court record consists of . . . [a]ll filed papers and documents in the case . . . ,

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

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[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

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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,

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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

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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

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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).
5

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

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

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

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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

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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

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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

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purposes of review. On appeal, the record of written documents is set forth in the clerks
transcript, which generally includes notices, judgments, orders, minute orders, court

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

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(rule 8.957).

For purposes other than judicial disqualification, several courts have evaluated

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specific court documents and found that minute orders and the courts 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

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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 courts written record of proceedings.
Such documents include minute orders, the official clerks 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 reporters transcript or electronic recording, an oral disclosure

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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

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

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

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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

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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

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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

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

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

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

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

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the nature of any information disclosed;

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

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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

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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

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

May 2011

Search website

Speaking up about judicial misconduct

Top Headlines
Opinion

By Janice M. Brickley

From the President

Highly publicized corruption scandals involving government officials

Janice M. Brickley

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

Letters to the Editor

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

MCLE Self-Study

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

Attorney Discipline

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

You Need to Know

Pennsylvania Judicial Conduct Boards failure to follow through with a

Trials Digest
Public Comment

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

Ethics Byte

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

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kids for cash scandal.

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Archived Issues

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 finders 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 Ciavarellas 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 Ciavarellas 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
judges obligation to decide sentences on a case-by-case basis.
Attorneys who regularly appeared in Ciavarellas 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 Ciaverellas courtroom
the attorney waiver rate was 50.2 percent. Similar gaps appear in the statistics
throughout Ciavarellas 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

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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, Pennsylvanias 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 Ursiaks first assignment when he joined the public defenders office in 2007
was to represent juveniles in Ciavarellas 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 Ciavarellas 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 judges
zero-tolerance policy impeded the juveniles 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 defenders
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
Countys juvenile court.
Ursiaks courage and persistence in reporting Ciavarellas improper practices should be
applauded. However, the silence of other attorneys who knew of the abuses in
Ciavarellas 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 Ciavarellas
hand.
According to the Interbranch Commissions report, no attorney practicing in Ciavarellas
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 Ciavarellas 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 Pennsylvanias 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 commissions 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.

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16 May 2013

SHORTCUTS TO POPULAR
SUBJECTS AND POSTS

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

JUDICIAL MISCONDUCT

(72)

Family Court Judges Fail to Make Conflict of Interest


Disclosure - Hundreds of Cases Tainted by Error

ATTORNEY MISCONDUCT

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SACRAMENTO FAMILY COURT NEWS ANALYSIS UPDATE

KICKBACKS
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JUDGE PRO TEM


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MATTHEW J. GARY
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FLEC
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PETER J. McBRIEN
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ARTS & CULTURE
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CHILD CUSTODY
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ROBERT SAUNDERS
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SCBA
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CJP
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JAMES M. MIZE
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CHARLOTTE KEELEY
(19)
EMPLOYEE MISCONDUCT

(19)
WATCHDOGS
(19)
PRO PERS
(18)
Sacramento Family Court reform advocates say the tattered flag that flies above the courthouse is emblematic of the systemic rule oflaw
breakdown - including serial conflict of interest disclosure violations - which they assert has taken place in court proceedings.

DIVORCE CORP
(17)
DOCUMENTS
(17)

In hundreds of cases,Sacramento Family Court judges have failed to make critical conflict of interest
disclosures required bystate 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.

PAULA SALINGER
(15)

In most of the cases, one party is unrepresented and indigent - substantially reducing the chances that relief will
be sought, butnonethelessrequiring 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$8,500and$25,500, according torecentappellate courtdecisions.New court records leaked by a

CARLSSON CASE
(12)

ROBERT HIGHT
(14)
SACRAMENTO SUPERIOR
COURT
(13)

RAPTON-KARRES
(12)
APPEALS
(11)

whistleblower and posted online exclusively bySacramento 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...

The Legal Duty To Disclose

COLOR OF LAW SERIES

(11)
CONFLICT OF INTEREST

(11)
SATIRE
(11)

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.

WHISTLEBLOWERS
(11)

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.

LAURIE M. EARL
(10)

"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."

SacramentoFamily Court
News has independently
Sacramento Family Court judges are required to disclose on the record
verified that the temporary
all information relevant to the question of disqualification.
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 problemalso representsa
complete failureby court administrators, theJudicial Council, and theJudicial Branchoversight
communityto 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 Counciland theCalifornia 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.

Disclosure vs. Disqualification


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

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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 ofCivil 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 Flagrant Disclosure Problem


The egregious nature of the problem in Sacramento Family Court,and the distinction between disqualification and
disclosureis illustrated by an actual disclosureprovided 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 theefficiencyof the Administrative Office of the Courts." Click here to view the order.

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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
controversialSacramento County Bar Association Family Law Executive Committee, and often attend and
speak at the monthly luncheon meetings of the Bar Association Family Law Section.

California Official Case Law

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.

California Statutes

The Conflict
A self-evident potential conflict of
interest exists when a private, forprofit 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, includingCode of Civil
Procedure Sec. 170.1,Canon 2A
and subsections of Canon 3 of the
Code of Judicial Ethics, and
theCalifornia 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

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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 CouncilCalifornia
Judges Benchguide.

Directory
California Coalition for
Families and Children
California Protective
Parents Association
Sacramento Family Court judges failure to disclose judgepro tem

conflict issues jeopardizes hundreds of orders & judgments.

"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 CCP170.1(a)(6), bias may be implied from a connection between a party and a judge that is not
a statutory ground for disqualification under CCP170.1, 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 theCode 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 ofCJP conflict of interest disciplinary
decisions.

Judge Pro Tem Conflict Disclosure History


TheEthics Committee of the California Judges Association provides all judges both full-time and temporary
with advisory Ethics Opinions and JudicialEthics 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.

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In an Ethics Update issued in February,1992, the committeeadvised 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 1992Ethics Update advised that a judge should disclose knowledge of the attorneys 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 violateCanons 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.

Code of Judicial Ethics 1996 Revision

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 issueson the recordis 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 judges court and a member of the attorneys firm appears before the judge. CJA warned judges that failing
to make the disclosure on the recordmay violate Canon 3 of the Code of Judicial Ethics. Canon 3E
requiresthat "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."

Other State and Federal Laws


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 acivil
lawsuitfor the deprivation of civil and constitutional rights and other grounds.Federalcriminal statutesalso may
apply. Federal criminal law prohibitsconspiracy against civil rightsanddeprivation of rights under color of
law.

Sacramento Family Courtreceives 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
tocriminal prosecutionunderfederal 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.

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Judge Robert Hight Misconduct: Supreme Court Committee Confirms


Systemic Judge Pro Tem Conflict of Interest Disclosure Law Violations

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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.

An attorney andSacramento Family Court News reader provided the California Supreme Court Committee on
Judicial Ethics Opinions Formal Opinionembedded 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:

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In our original May, 2013 investigative report, we provided the legal authority, including Judicial Ethics Updates
and Ethics Opinions from the California Judges Associationrequiring 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
otherauthority.Click here to view our 2013 report.

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For additional reporting on the people and issues in this post, click the corresponding labels below the document:

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

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