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The California Supreme Court held last week that in an arbitration proceeding under California state law, a former judge selected by the parties as arbitrator, is not required to disclose to the parties any form of prior public censure (professional discipline against a judge), as a matter which could indicate a propensity for bias.  While the California statutes do not specifically require an arbitrator’s disclosure of prior public censure, the state arbitration statute does provide that one of the very few grounds to vacate (throw out) an arbitration decision is if the arbitrator had failed to disclose in advance, a matter “that could cause a person aware of the facts to reasonably entertain a doubt that the … neutral arbitrator would be able to be impartial” (Cal. Code of Civil Proc. § 1281.9(a)).  In this case, a female plaintiff claiming failed cosmetic plastic surgery discovered the arbitrator’s undisclosed, prior public censure for “conduct prejudicial to the administration of justice,” involving sexually suggestive and demeaning remarks, questions and conduct toward his staff, and referring to a female judge as “fatso” and a “sow”. 
 
The Supreme Court’s decision takes a torturous path to conclude that the former judge’s public censure for such conduct could not cause a person to reasonably entertain a doubt that the judge would be able to be impartial, particularly in a claim by a cosmetic surgery patient against her male doctor.  Dissenting justices Wedergar and Low instead conclude that disclosure was in order, and would have vacated the arbitration award against the patient. 
 In drier civil procedure terms, the Supreme Court’s decision establishes that (1) the courts are to make their own de novo rulings on claims of arbitrator misdisclosure, just as the courts rule de novo on claims that arbitrators exceeded their powers; and (2) as to potential bias, what arbitrators must disclose are the same things that would require a trial court judge to actually disqualify himself or herself; not the broader scope of what a judge must disclose.  (Haworth v. Superior Court, Cal. Supreme Court No. S165906, August 2, 2010).

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