California: Petitions for Disqualification of Workers’ Compensation Judge Based on Bias: A Steep Climb?

By Hon. Marguerite Sweeney, Former Commissioner, California Workers’ Compensation Appeals Board

It’s no surprise to practitioners that most petitions to disqualify a WCJ are denied by the Appeals Board. What might be surprising is that many of those petitions are noncompliant with procedural requirements. Moreover, a multi-year review of the Appeals Board’s decisions confirms that the Board generally addresses the underlying merits despite procedural defects that alone permit dismissal or denial. This approach reflects sound jurisprudence consistent with public policy favoring decisions on the merits. Still, most petitions for disqualification fail on the merits.

The rules governing judicial ethics, bias and disqualification are numerous, daunting and insufficient by themselves to demonstrate how they should be applied in actual cases.  Case law provides necessary clarification through statutory construction and guiding principles. 

Here are key takeaways from the abridged summary of the rules and case law that will follow.  

Takeaways:

Judges enjoy considerable latitude in their courtrooms, including the ability to express their opinions about a case during the course of a proceeding. Stating an opinion about the merits of an issue or the claim by itself isn’t disqualifying per se, but additional facts might establish grounds for disqualification. Judicial latitude has limits, and petitions for disqualification are an

important check on improper judicial behavior.

Some key points:

• The petition should comply with statutory and regulatory requirements or it may be dismissed.
  • An allegation of judicial bias must be supported by an affidavit setting forth specific facts that constitute one or more statutory grounds for disqualification. Allegations of bias without sufficient factual showing may be ignored (Mackie v. Dyer (1957) 154 Cal. App. 2d 395, 399.)
  • Making a sufficient factual showing may require some corroboration such as witness statement(s) or confirming information contained in the Minutes of Hearing or in a transcript of the proceedings.
• Even when specific supporting facts are alleged, they may not demonstrate actual bias or bias sufficient to support disqualification.
  • The appearance of bias, as opposed to actual bias, may not be disqualifying.
  • Not every adverse interaction between judge and attorney or between judge and party is sufficient to warrant disqualification.
  • A party’s unilateral and subjective perception of bias does not afford a basis for disqualification.
  • When the judge’s state of mind appears to be adverse to one of the parties but is based upon actual observance of the witnesses and the evidence given during the trial of an action, it does not amount to disqualifying prejudice.
• The bias or prejudice must make it probable that a fair trial cannot be held before that judge. In other words, it must be sufficient to impair the judge's impartiality.

The Jurisprudence of Judicial Disqualification

The Constitution, Codes, Statutes and Board Rules:

Cal. Const. Art. VI § 18(m); Canons 1, 2 and 3 of the Code of Judicial Ethics, Code of Civil Procedure section 641(f) and (g), Labor Code sections 123.6, 5311, and 5312, Code of Regulations, title 8, sections 9792.1, 9792.12 and 9792.13, and Board Rule 10960(!)

Workers’ compensation judges are bound by the California Code of Judicial Ethics. (8 CCR 9721.1.) Canon 2 states "A judge shall avoid impropriety and the appearance of impropriety in all of the judge's activities.” Canon 3 requires that a judge perform the duties of judicial office impartially, competently and diligently. Labor Code section 5312 requires every workers' compensation judge to take an oath before taking office to faithfully and fairly hear and determine the matters and issues referred to him or her, to make just findings and to report according to his or her understanding. There is a presumption that judges serve with honesty and integrity. (People v. Chatman (2006) 38 Cal. 4th 344, 364 [133 P.3d 534, 42 Cal. Rptr. 3d 621]. Bias and prejudice are never implied. (Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal. 3d 781, 791-794.)

There are eleven grounds for disqualification of workers’ compensation judges set forth in 8 CCR 9792.12. Among them, a judge is disqualified if the judge has “actual bias in favor of or against any party or any attorney for a party, and the judge has substantial doubt as to his or her capacity to be impartial; [or] because of physical impairment, the judge is unable to perceive evidence or properly conduct proceedings…” (8 CCR 9792.12(a)(3), (4), (11).) Section 9721.13 addresses “What Are Not Grounds for Disqualification.” Subsection (b) states that a judge’s expressed opinion on a legal or factual issue presented in the proceeding is not by itself disqualifying unless the judge has formed an unqualified belief as to the merits of that particular action.

Labor Code section 5311 permits a party to object to a particular workers’ compensation judge upon any of the specified grounds in Code of Civil Procedure section 641. Two statutory grounds that are often invoked in workers’ compensation proceedings are Code of Civil Procedure section 641(f) and (g):

“A party may object to the appointment of any person as referee, on one or more of the following grounds:

….

(f) Having formed or expressed an unqualified opinion or belief as to the merits of the action.

(g) The existence of a state of mind in the potential referee evincing enmity against or bias toward either party.”

Board Rule 10960 governs the specific process and procedural requirements:

“Proceedings to disqualify a workers' compensation judge under Labor Code section 5311 shall be initiated by the filing of a petition for disqualification supported by an affidavit or declaration under penalty of perjury stating in detail facts establishing one or more of the grounds for disqualification specified in section 641 of the Code of Civil Procedure. The petition to disqualify a workers' compensation judge and any answer shall be verified upon oath in the manner required for verified pleadings in courts of record.

If the workers' compensation judge assigned to hear the matter and the grounds for disqualification are known, the petition for disqualification shall be filed not more than 10 days after service of notice of hearing or after grounds for disqualification are known.

A petition for disqualification shall be referred to and determined by a panel of three commissioners of the Appeals Board in the same manner as a petition for reconsideration.” (Formerly Rule 10452.)

There are other prerequisites in Board Rules 10940, 10945 and 10964, including verification upon oath, proof of service, page limitations, and the contents of petitions and supplemental petitions. These Board Rules apply broadly to petitions for reconsideration, removal and disqualification, and answers to those petitions.

The Cases

Two recent contiguous panel decisions summarize relevant case law. In Navroth v. Mervyn’s Stores, the applicant in pro per filed a petition for disqualification following a hearing on 12/29/22, alleging that the judge’s concern for a family member’s health had compromised the judge’s “cognitive and memory processes” and further that his trial directions and demeanor indicated the appearance of bias or actual bias against the applicant. Denying the petition, the panel noted that the petition violated Board Rule 10960 because no sworn and detailed affidavit was attached establishing one or more grounds, and the petition was not timely.[fn1] The panel then noted that the petition itself was signed under penalty of perjury and set forth detailed facts alleged to be in support of DQ. “Accordingly” the panel proceeded to consider the merits of the petition. After review of the petition, the Judge’s Report and the record, including the Minutes of Hearing,[fn2] the panel concluded that the factual assertions about the judge’s behavior were not sufficient to provide a basis for disqualification, and that the alleged appearance of bias was not borne out by the record.

Applicant then filed a petition for reconsideration, asserting that the MOH of the 12/29/22 trial was incorrect and factually incomplete, and that the Appeals Board had obstructed the Applicant’s due process rights by not interviewing percipient witnesses to the trial proceedings. The panel dismissed the petition for reconsideration because an order denying disqualification is not a final order. The remedy is a petition for removal, and the Board considered the merits of the petition on that basis.

Denying the petition for removal, the panel again pointed out that “…allegations of bias and prejudice of a judge must set forth specifically the facts on which the charge is predicated; a statement containing nothing but conclusions and setting forth no facts constituting a ground for DQ will not support judicial disqualification…Here, the Petition for Reconsideration offers no independent evidence to support the allegation of bias or the appearance of bias on the part of the WCJ.”[fn3] Navroth v. Mervyn’s Stores, 2023 Cal. Wrk. Comp. P.D. LEXIS 236 (Appeals Board noteworthy panel decision) (Opinion and Order Denying Petition for Disqualification 9/7/2023), followed by Navroth v. Mervyn’s Stores, 2023 Cal. Wrk. Comp. P.D. LEXIS 318 (Appeals Board noteworthy panel decision) (Opinion and Order Dismissing Petition for Reconsideration and Denying Petition for Removal 11/13/2023) [Emphasis included].

The Navroth panel decisions adhere to the principles enunciated in case law. In Andrews v. Agricultural Labor Relations Bd, the Supreme Court wrote:

“In order for the judge to be disqualified, the prejudice must be against a particular party [citations] and sufficient to impair the judge's impartiality so that it appears probable that a fair trial cannot be held. The case thus suggests a two-tier inquiry in determining whether the bias alleged by a party is a sufficient ground for disqualification. The first inquiry consists of deciding whether the moving party has set forth legally sufficient facts to demonstrate the bias of the judicial officer. After that determination, the challenged judicial officer or a reviewing court must still decide whether such bias will render it probable that a fair trial cannot be held before that judge. In other words, the bias or prejudice must be ‘sufficient to impair the judge's impartiality’… [A] party's unilateral perception of an appearance of bias cannot be a ground for disqualification unless we are ready to tolerate a system in which disgruntled or dilatory litigants can wreak havoc with the orderly administration of dispute-resolving tribunals.” (Citing Mackie v. Dyer (1957) 154 Cal. App. 2d 395.) Andrews v. Agricultural Labor Relations Bd. (1981) 28 Cal. 3d 781, 791-794.[fn4]

In a 2006 Appeals Board significant panel decision, defendant alleged that the WCJ was biased against defense counsel. In response, the WCJ represented that he currently had no bias and could be impartial. The panel accepted the WCJ’s denial of actual basis, and acknowledged the presumption that a judge acts without bias. “… Nevertheless, our inquiry cannot end there because actual bias is not the only ground for disqualification. The appearance of bias may be sufficient to require disqualification. As to the appearance of bias, the objective test to be applied is whether a person aware of the facts might reasonably entertain a doubt that the judge would be able to act with impartiality…” The WCAB granted defendant’s petition for disqualification. The panel cited to the Code of Judicial Ethics, by which WCJs are bound, requiring WCJs to avoid even the appearance of impropriety. Robbins v. Sharp Healthcare (2006) 71 Cal. Comp. Cases 1291 (Appeals Board significant panel decision).

The Appeals Board has ordered disqualification when judges have made statements that belittle or disparage a party or their counsel. Such conduct has been found to establish the “appearance of bias” sufficient to require disqualification. In Alvarado v. Sky Ready Mix Inc., 2020 Cal. Wrk. Comp. P.D. LEXIS 268 (Appeals Board noteworthy panel decision), the WCJ told lien claimant’s counsel that lien claimant was the “bottom of the barrel.” In ordering disqualification, the WCAB panel wrote that they accepted as true the judge’s representations that he held no bias against the lien claimant and was fully able to fairly adjudicate the claim but concluded that the judge’s statements could give rise to doubts about the WCJ’s impartiality, thereby creating the appearance of bias. Disqualification was ordered only as to that one case, and not to other cases with liens by the same lien claimant. The panel noted that “…the appearance of bias will not necessarily exist indefinitely…and might pass after a time…”[fn5]

In Johnson v. Lexmar Distributions, involving an interesting dispute over the admissibility of dash cam video evidence, the defendant also petitioned for disqualification and submitted an affidavit describing two comments by the WCJ directed toward defense counsel as evidence of bias or appearance of bias. The panel agreed that the judge’s comments “could be construed as belittling of her [defense counsel] and her ability to litigate.” The panel found that this was sufficient grounds for disqualification, pointing out that there was nothing in the WCJ’s report or in the record refuting the claimed statements. See Johnson v. Lexmar Distribution, 2021 Cal. Wrk. Comp. P.D. LEXIS 289 (Appeals Board noteworthy panel decision).

Footnotes:

1. At the outset the panel noted that the Applicant had filed a supplemental pleading in response to the judge’s report. That supplemental pleading was “not accepted or received” for failure to comply with Board Rule 10964(b). This error occurs frequently in matters brought before the Appeals Board.

2. The panel noted that there was no transcript of the proceedings or any other independent evidence.

3. It is the party who carries the burden of proof who must submit evidence that is adequate to meet that burden. Citing McKernan, the panel noted that the Board “will not direct augmentation of th record where the record is otherwise sufficient to support a final determination. [Citations.]” While emphasizing that allegations of bias are given serious attention, here the applicant’s petition failed to cite to evidence in support of his allegations.

4. In Andrews the Supreme Court analyzed a different statute, Code of Civil Procedure section 170(5) which required disqualification where “it is made to appear probable that, by reason of bias or prejudice of such justice or judge a fair and impartial trial cannot be had before him.” Although different from Code of Civil Procedure section 641, the Court addressed what is and what is not judicial bias subject to disqualification.

5. The panel ordered disqualification based upon two grounds: appearance of bias and also improper ex parte communication between the judge and lien claimant’s counsel in chambers, when counsel asked WCJ to recuse himself due to past statements made about lien claimant.

Reminder: Board panel decisions are not binding precedent.

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