December 10, 2013

Firm Obtains Writ Disqualifying Judge from Presiding over Family Law Case

Firm Obtains Writ Disqualifying Judge from Presiding over Family Law Case

The Father in a post-dissolution family-law dispute had twice filed motions asking the judge to disqualify herself because of the appearance of partiality. One motion was based on a letter where the judge disclosed that she had been personally represented by a partner in the law firm that represents the Mother. The second motion pointed out some judicial acts corroborating the Father’s reasonable fear that he would not get a fair hearing in that courtroom.

After the judge denied both of those motions, the Father’s attorney referred him to Bresky Law to pursue a petition for writ of prohibition in the Fourth District Court of Appeal (“Fourth DCA”). The goal was to have the Fourth DCA disqualify the judge from presiding over the case.

In the petition, we pointed out the inherent risk of bias where the judge had been personally represented in her own divorce case by the same law firm that represents the Mother in this case. The record also included some rulings that seemed to indicate actual partiality. We explained how the Father’s motions for disqualification were legally sufficient and timely (filed within 10 days of his discovering the facts that gave rise to the reasonable fear of bias). For example, the first motion was filed on the same day that his attorney received the judge’s disclosure letter, even though it was received more than 10 days after it was mailed.

The Fourth DCA agreed that the motion was timely filed, and that it should have been granted because the Father had a reasonable fear that he would not get a fair and impartial hearing. The opinion cited the general rule that “disqualification is required if counsel for one of the parties is representing or has recently represented the judge,” and it approved of a California decision where a judge reassigned a case because a member of the law firm representing the plaintiff had previously acted as counsel for the judge.

The Fourth DCA issued a writ of prohibition and emphasized that “justice must satisfy the appearance of justice.” The writ will result in another judge being assigned to the case, and the Father can ask the successor judge to reconsider any prior factual or legal rulings by the disqualified judge.