CALIFORNIA JUDGES BENCHGUIDES

Benchguide 2

DISQUALIFICATION OF JUDGE
[REVISED 2010]

d. [2.14] Family Connection to Party or Counsel

A judge is disqualified if the judge, the judges spouse, or a person
within the third degree of relationship to either of them (or the spouse of
such a person) is a party or an officer, director, or trustee of a party. CCP
170.1(a)(4). On persons within the third degree of relationship, see 2.11.
A judge who fails to initiate recusal and acts in a proceeding involving a
family member is subject to admonition. See Rothman, Handbook 7.46.
A judge is also disqualified if the judge or his or her spouse is a child,
sibling, spouse, former spouse, or parent of one of the lawyers in the case
or is associated in private practice with a lawyer in the case. CCP
170.1(a)(5). See also CJA Ethics Opinion 45; Rothman, Handbook 7.45
(relatives employment in nonattorney position by law firm involved in
proceeding probably does not disqualify judge).

See also In re Morelli (1970) 11 CA3d 819, 844 n17, 91 CR 72, for a
collection of sufficient showings of bias.
Implied bias. Under CCP 170.1(a)(6), bias may be implied from a
connection between a party and a judge that is not a statutory ground for
disqualification under CCP 170.1. For example, CJA Ethics Opinion 19

217

Disqualification of Judge

2.19

states that a judge may not hear any case involving a co-employee of a
former associate who had recently performed legal services for the judge.
JUDICIAL TIP: A judge should be careful not to make unnecessary comments or statements about a case or the litigants if there
are unresolved issues, evidence is still to be received, or there is a
possibility of a retrial or an appeal. Even after these issues are
resolved, a judge should avoid unnecessary comments about a
case.
Double jeopardy. In a criminal or juvenile delinquency case, when a
judge disqualifies himself or herself under CCP 170.1(a)(6), thus
compelling a mistrial of the case, double jeopardy does not bar a retrial of
th d f d t I
C l V (1997) 57 CA4th 522 525 528 67 CR2d