UC Law Journal
Abstract
One of the most fundamental concepts of our legal system is the impartiality of judges. Statutes, case law, and professional codes set out the standards by which we measure improper bias in the judiciary. In California, section 170.2(a) of the Code of Civil Procedure states that a judge's membership in a "racial, ethnic, religious, sexual or similar group" is not a ground for disqualification in a proceeding involving the rights of the same group. This Note examines whether this provision should be applied to protect judges from disqualification based solely on sexual orientation. After concluding that legislative intent is inconclusive on that question, the Note analyzes application of section 170.2(a) to sexual orientation through the principles of judicial disqualification law. These include the standard of actual bias; the appearance of bias standard; extrajudicial knowledge of disputed facts; the rule of necessity; and discouragement of certain extrajudicial activities. The Note concludes that these principles are consistent with and support application of section 170.2(a) to sexual orientation. Thus, the statute should indeed prevent disqualification based solely on a judge's sexual orientation.
Recommended Citation
Charles Malarkey,
Judicial Disqualification: Is Sexual Orientation Cause in California,
41 Hastings L.J. 695
(1990).
Available at: https://repository.uclawsf.edu/hastings_law_journal/vol41/iss3/5