Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a) A judge is
disqualified in a workers' compensation case if any of the following is true:
(1) The judge has personal knowledge of
disputed evidentiary facts.
(2) The
judge served as lawyer for a party in the past two years.
(3) The judge has actual bias in favor of or
against any party and the judge has substantial doubt as to his or her capacity
to be impartial.
(4) Because of
physical impairment, the judge is unable to perceive evidence or properly
conduct proceedings.
(5) Within the
past two years, the judge served as a lawyer for an officer, director, trustee
of a party.
(6) Within the past two
years, the judge was associated in private practice, as an employee or on a
contract basis, with a lawyer in the proceedings.
(7) The judge, the judge's spouse, or minor
child of the judge, personally or as a fiduciary, has a financial interest in
the subject matter in a proceeding or in a party to the proceeding, or has a
relationship of director, advisor, or active participant to a party to the
proceeding.
(8) The judge, the
judge's spouse, a relative of either within the third degree of relationship,
or spouse of such relative, is likely to be a material witness.
(9) A party to the action before the judge,
or the party's spouse, is related within the third degree of relationship to
either the judge or to the judge's spouse.
(10) The judge believes that recusal would
further the interests of justice or believes there is a substantial doubt as to
his or her capacity to be impartial.
(11) The judge has actual bias against or in
favor of an attorney for a party and the judge has a substantial doubt as to
his or her capacity to be impartial. A judge is not disqualified as to other
members or associates in a law firm, or as to the law firm itself, solely
because of actual bias against or in favor of individual attorneys in or
associated with the firm. Actual bias in favor of or against an attorney does
not in itself create the appearance of bias as to a law firm of which the
attorney is a member or associate. A doubt of a person aware of the facts that
a judge could be impartial towards a law firm or other members or associates of
a law firm, based only on knowledge of a judge's bias in favor of or against an
individual attorney or attorneys, is not a doubt which is reasonably
entertained. If the workers' compensation appeals board, on a petition for
disqualification alleging bias against or in favor of an attorney, determines
that a judge is disqualified because of the appearance of bias or because a
person aware of the facts might reasonably entertain a doubt that the judge
could be impartial, it shall not be presumed, as to a law firm of which the
attorney is a member or associate, or as to other members or associates of the
law firm:
A. that there is the appearance of
bias; or
B. that a person aware of
the facts might reasonably entertain a doubt that the judge could be
impartial.
(b)
The parties may waive the disqualification of a judge after written disclosure
of the facts constituting a ground of disqualification. A judge who believes he
or she is disqualified shall recuse or shall state in writing the basis of
disqualification. All waivers shall be in writing and shall be made part of the
file, or shall be made on the record. The judge may ask the parties and their
attorneys whether they wish to waive the disqualification. The judge may not
request the parties or attorneys to waive the disqualification The parties and
any attorney for the employee shall execute any waiver. An attorney for a party
other than the employee may execute the waiver on behalf of the attorney's
clients. Such a waiver shall state that the attorney has advised the client of
the disqualification information, and that the client has agreed to waive the
disqualification.
(c)
Disqualification for the following circumstances cannot be waived:
(1) The judge, the judge's spouse, a relative
of either within the third degree of relationship, or spouse of such relative,
is likely to be a material witness
(2) The judge served as a lawyer in the
case.
1. New
section filed 8-25-2008; operative 9-24-2008 (Register 2008, No.
35).
Note: Authority cited: Sections 123.6,
133 and 5307.3, Labor Code.
Reference: Sections
111 and 123.6, Labor
Code.
