Judicial Bias Issue Belongs on Afternoon Soap Operas

Saturday, October 7, 2006 | 0

By Jake Jacobsmeyer

The Workers' Compensation Appeals Board issued a new "Significant Panel Decision" on a rather unusual and hopefully very limited issue that looks like it belongs on the afternoon soap operas rather than the WCAB The issue has to do with the ability of a law firm to challenge a workers' compensation judge for cause based on past expressions of bias by the judge against the firm even though the WCJ denies any current bias against the firm or against any of the clients of the firm.

This case arises out of a series of events at a Southern California WCAB that are fairly well known amongst many in the legal community. A Southern California law firm filed a series of complaints involving judicial misconduct against a specific WCJ. The WCJ after successfully fending off the challenges, developed a practice of recusing himself from all cases involving the specific firm. As the WCJ was also married to another WCJ in the same office, his spouse also recused herself on the basis of bias against the same firm.

The policy allowing these two WCJs to issue blanket recusals resulted in a perceived disproportionate amount of trial work being done by the other WCJs at the same board. In 2005, the court administrator decided to stop the policy of allowing blanket recusals from all of the trial work involving specific firms and directed the WCJs involved to discontinue the practice of blanket recusals. While there was initially resistance by the WCJs to the directive, ultimately the WCJs concurred and agreed to start hearing cases involving the specific law firm now claiming that with the passage of time, the previously described bias had dissipated and the WCJs would now be able to hear cases without concern for bias against the law firm involved.

This apparently now placed the law firm that had previously not had to appear before the two judges in a position where they might have to appear before the WCJs. The attorneys in the firm therefore filed motions to disqualify the WCJ in a series of cases.

In the most recent cases the WCJ refused to recuse himself claiming to have recovered from the prior bias against the specific firm. The law firm filed a motion to disqualify on the basis the even if the WCJ claimed there was not existing bias, that the prior history suggested the appearance of bias. The WCJ refused to grant the motion and the law firm filed a Petition for Removal.

The WCAB determined that the circumstances herein suggested that the appearance of bias still existed and granted defendants motion to disqualify. However the board also made it clear that disqualification in this one case did not meant that disqualification should be automatic in the future for all appearances by the specific law firm in front of the specific WCJ or his spouse. The WCAB did conclude that a showing of bias against an attorney rather than a party was a sufficient basis to grant a motion to disqualify a WCJ.

This author has deliberately not used the names of the WCJs or the law firm involved in this series of events. They are well described in the actual case which can be located by clicking on the link below and for those who are interested in the details the 23 page opinion provides extensive discussion of the factual circumstances that gave rise to the legal issues involved.

This case does have an extensive discussion of the law on judicial bias and the rules on disqualification.

Hopefully the issues presented in this case will have extremely limited application in proceedings throughout the rest of the state.

This case can be located by double clicking on the link to the right.

Attorney Richard "Jake" Jacobsmeyer is a partner in the firm Shaw, Jacobsmeyer, Crain & Claffey and can be reached at jakejacobsmeyer@shawlaw.org.

-------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.