Lawmakers forward bill to allow parties to disqualify justices of Court of Appeal

A bill that would allow parties to disqualify appellate justices passed a key Legislature committee on Tuesday. But AB 2125 faces opposition from the California Judges Association and skepticism even from some lawmakers who voted for it.

The bill is of particular importance to some Latino Democrats. It was inspired by a long-running California Voting Rights Act case — leading one lawmaker to ask if the solution might be to reexamine the act itself.

Assemblyman Eduardo Garcia, D-Coachella, told the Assembly Judiciary Committee that AB 2125 is designed to “reduce delay” and “restore public trust.”

“This bill fills a hole in the Code of Civil Procedure, ensuring that when the California Supreme Court reverses an appellate court decision, that appeal is decided by an unbiased appellate panel,” Garcia said.

Garcia then said exactly which court decision and which appellate panel he was referring to. In 2016, a community group called the Pico Neighborhood Association sued the City of Santa Monica, claiming the city’s at-large voting process was discriminatory and helped prevent the election of Latino candidates. A Los Angeles Superior Court judge ruled in the association’s favor.

But in 2020, a unanimous panel of the 2nd District Court of Appeal, Division Eight, disagreed. Justice John Shepard Wiley Jr. wrote that even under a district system, Latinos would still not represent a majority in any one district, meaning they could not show their power was diluted in violation of the act. He was joined by Justices Tricia A. Bigelow and Elizabeth A. Grimes.

Then last year, the California Supreme Court ruled that the act did not require a group claiming its power was diluted to show it would constitute a majority in one or more districts. In February, an appellate panel that included Wiley and Grimes remanded the case back to the Los Angeles County Superior Court, as the Supreme Court demanded. But they did so under narrow grounds, writing that the high court depublished the appellate ruling but “did not review the constitutional issue, nor did it reinstate the trial court’s judgment on the Act.” Justice Maria E. Stratton replaced Bigelow as the third judge on the panel. Pico Neighborhood Association v. City of Santa Monica, 2023 DJDAR 8739.

Some people saw this as the appellate court attempting to maintain parts of its ruling in defiance of the Supreme Court. According to an Assembly analysis, the Inland Coalition for Immigrant Justice and the Asian Law Alliance joined in calling for legislation to address the problems that can occur when “appellate justices are hostile to the party prevailing in the Supreme Court.” Garcia introduced AB 2125 last month by amending an unrelated bill.

The Judicial Council and California Judges Association presented a starkly different view.

“AB 2125 is not the answer,” 3rd District Presiding Justice Laurie M. Earl told the committee. “Contrary to the apparent attempt of the bill, the effect of AB 2125 would result in significant delay in appellate and trial court proceedings.”

“Workload by itself should not be a reason not to do it,” countered Judiciary Committee Chairman Ash Kalra, D-San Jose.” If we need more resources that is a different issue.”

Earl said appellate courts keep extensive records on justices’ potential conflicts. She also noted they decide only matters of law, not matters of fact, and said the three-judge panel system creates another check on bias.

She added, “We are not like the United States Supreme Court. California has a Code of Judicial Ethics.”

California Judges Association lobbyist Mike Belote praised Garcia for making amendments to put a 2030 sunset date in the bill and to commission a study on the issue. But he urged against implementing any changes “while the study is going on.”

Belote also warned the law would expand to the appellate courts a problematic rule allowing attorneys to challenge superior court judges.

“All lawyers in California practice know that [Code of Civil Procedure] Section 170.6 has become a peremptory challenge of judges,” Belote said. “Every day in California, hundreds of times lawyers are making bias allegations, because they must, when they know that no bias exists.”

AB 2125 passed the committee 9-2. Two Latina Democrats on the committee voted in favor but said they might not do so on a floor vote. Assemblywoman Eloise Gomez Reyes, D-Colton, said she was concerned by the questions raised by political activists, and added, “I reserve the right to revisit this.”

“I know what we’re talking about is judicial procedure, but really the core of what’s triggering this conversation is the Voting Rights Act and the decision on the judicial process in question,” said Assemblyman James Ramos, D-Highland, just before the vote. “The Voting Rights Act is something we really need to take a really serious look at.”