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Bar Association of San Francisco Member Benefits: Publications

Family Law Corner: Can Money Buy a Decision?

 

By Ariel Sosna and Sarah Van Voorhis, Van Voorhis & Sosna

 

After one of the nastiest celebrity custody battles in the last year ended with a surprise decision in favor of R&B singer Usher and only weeks after he was found in contempt of court, Usher’s ex-wife Tameka Raymond is claiming that money bought him the decision. After Raymond lost primary custody of the parties’ two children, she immediately vowed to appeal the judge’s order. Her first tactic was to file a motion for a new trial, taking the position that the judge who made the decision was biased. Apparently, Usher’s attorney’s law firm held an election fundraiser for Judge Lane in 2008, raising over $1,200 toward her reelection.

In California, the California Code of Civil Procedure governs claims of actual bias of the judiciary in Family Law cases. In addition to being able to “disqualify” your judge by exercising one peremptory challenge at the beginning of your case, judges must also disqualify themselves under certain circumstances. Pursuant to CCP §170.6, a peremptory challenge invokes the right to disqualify the assigned judge generally “for prejudice” without specifying or providing any particular grounds or reasons. This challenge must be made at the outset of the case (where the case is assigned to a single judge for all purposes, a peremptory challenge must be made within 15 days after notice of the judge’s assignment). However, pursuant to CCP §170.1, a judge “shall” be disqualified under a number of circumstances, including if the judge has received a contribution in support of the judge’s last election (if the election was in the last six years or if the contribution was received in anticipation of the upcoming election) in excess of $1,500 from a party or lawyer in the proceeding. §CCP 170.1(a)(9)(A).

In California, had Usher’s lawyer contributed approximately $300 more to the judge’s campaign, Raymond could have been successful in obtaining a new trial here in California. Orders made by a disqualified judge are void and must be vacated regardless of a showing of prejudice by the judge. Rossco Holdings Inc. v. Bank of America (2007) 149 CA4th 1353, 1362. It makes no difference that the judge was unaware of the disqualifying facts when the ruling was made.

Tatum v. Southern Pac. Co. (1967) 250 CA2d 40, 43. Unfortunately for Raymond, the Atlanta judge denied her motion, presumably because the judge is not disqualified under Georgia law. Raymond may now have to queue up her appeal instead.

 


Sarah Van Voorhis, a Certified Family Law Specialist, and Ariel Sosna are founding partners of Van Voorhis & Sosna.

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