No, this is not the return of Alex Kozinski's off-color Web site scandal. Just a tip for judges who go online to check facts. As handy as the Internet can be in tracking down information, a California appellate panel says trial court judges should be cautious about when and how they use it.
Fresno’s Fifth District Court of Appeal issued that warning today after attorneys tried to disqualify Fresno County Superior Court Judge Adolfo Corona for allegedly conducting an “independent investigation” during a class certification motion.
Specifically, attorneys for Tri Counties Bank accused Corona of issuing a tentative ruling that referred to the bank’s 10-K report, which is a financial document filed with the federal Securities and Exchange Commission. The bank moved to disqualify Corona on the basis of being allegedly partial to its opponents, but the judge denied by finding the motion was filed too late to meet the statute of limitations.
The appeal court agreed today, and went further by noting that judges are allowed to independently research the kind of information Corona uncovered, even though not raised as an issue by either party. It was a fact that was easy to track down and was indisputable.
Nonetheless, the appellate court took the opportunity to tell judges to be wary about how they use the Internet — even though the court said it wasn’t “privy” to how Corona actually located the 10-K report.
“We take this occasion to sound a warning that judges are not at liberty to probe the internet [which the court lower-cased for some reason] for the purpose of secretly conducting investigations of parties or factual issues that are pending before them,” Justice Stephen Kane wrote (.pdf). “A judge’s legitimate review of collateral sources (including at times Internet sources) for the purpose of potentially exercising judicial notice must be exercised with great caution, with due concern for even the appearance of partiality, and should be limited to those instances where the matter under consideration is reasonably likely to be indisputable and readily verifiable in character.”
Justices Steven Vartabedia and Dennis Cornell concurred.
So appellate justices, surf carefully.
— Mike McKee
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