By Jeff Birren
The lawsuit filed by former USC assistant football coach Todd McNair remains active in the Los Angeles County Superior Court despite concerted efforts by the NCAA. McNair sued the NCAA for various torts after the NCAA essentially drove McNair from his profession. The NCAA’s claimed basis for its action was that it found credible a convicted felon who said he assumed that McNair knew about the felon’s improper activities.
The California Court of Appeal has issued two decisions in the case (See, “The Public Is Invited,” SLA February 20, 2015; and “Who Guards The Guardians?” SLA December 25, 2015). The first ruling rebuffed NCAA attempts to seal records. The second decision largely rejected the NCAA’s appeal of the trial court’s refusal to grant its “Anti-SLAPP” special motion to strike, though the Court of Appeal did dismiss several minor claims. Tellingly, the Court of Appeal awarded McNair costs on appeal. Yet somewhere in NCAA headquarters that loss became a victory that allowed the NCAA to disqualify the trial court judge.
Based on this slender and waiving reed, the NCAA has filed a motion to disqualify the trial court judge. The motion is based on statutory grounds that do not apply and the so-called interests of justice test requires one to accept highly charged blogging-USC fans as the average reasonable person. Since that is not the case, the second half of the motion also fails.
The Claimed Statutory Grounds
The NCAA’s first ground is purely statutory, and works if one does not peruse the statute. California Code of Civil Procedure § 170.1 et seq allows a party to disqualify a judge under certain and limited circumstances. For example, either side may disqualify one judge once, within ten days of assignment to that judge merely by filing a declaration of prejudice under CCP § 170.6. However, the ability to do so thereafter is strictly limited. Nevertheless, the NCAA proceeded to make such a motion on grounds that do not exist in the case.
Their motion is based on CCP § 170.6(2). That section states that following reversal on appeal, a party may disqualify the reversed judge if the reversed judge “is assigned to conduct a new trial on the matter”: exactly when the judge will conduct a “new trial.” The trial court in McNair cannot yet conduct a new trial because it has never conducted any trial. “Trial” includes granting summary judgment, but the McNair case has not reached that stage.
It makes sense that the statute would be so limited. It is hard to see how the interests of justice would be served if every time the Court of Appeal reversed minor discovery matters the trial court judge could be disqualified. All that has yet happened in McNair is preliminary matters, including discovery matters and several rulings on the NCAA’s Anti- SLAPP special motion to strike. The NCAA’s motion requires one to accept that what will eventually happen in the case is a “new trial.” No trial has been held. This portion of the NCAA’s motion is at best frivolous, and beneath the dignity of the law firm that filed it.
The NCAA’s cited case authorities drive the point home. They cite Pfeiffer Venice Properties v. Super. Ct. (2002) 107 Cal. App. 4th 761, 765, but the quote is aimed at judges “whose conduct during the original trial evidenced prejudice towards a party.” Since there has been no trial in McNair, Pfeiffer is irrelevant. They also cite Hendershot v. Super Ct. (1993) 20 Cal. App. 4th 860, but their quote states that the statute applies “if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter” (Id. at 863). Henderson, like Pfeiffer, came following a reversal of a judgment that had been entered, not the usual give pre trial motion practice.
The NCAA also relies on Stubblefield Const. Co. v. Super. Ct. (2008) 81 Cal. App. 4th 762 for the proposition that the statute applies when there is merely a partial reversal on appeal. It states that the statute only applies when there will be a “new trial,” following a “final judgment.” There has been no trial and no judgment in McNair. Stubblefield adds the obvious: the statute applies “if the case involves an actual retrial of one or more issues.” No new trial means the statute does not apply.
Their final case, Curle V. Super. Ct. (2001) 24 Cal. 4th 1057, has nothing to do with the specific statute, but merely answered a procedural question under CCP Section 170.3 of whether or not a disqualified judge can file a writ to overturn the disqualification. The State Supreme Court said no, and never mentioned the statute at issue in McNair.
The Argument Based on the “Appearance of Judicial Bias”
The second half of the motion is devoted to the notion that the mere appearance of judicial bias is a separate reason to reassign the case. The motion comes with platitudes from federal court decisions that discuss the need for the appearance of justice. However, the United States Supreme Court reiterated that due process guarantees just “an absence of actual bias” (Williams v. Pennsylvania, 579 U.S. ___ (2016) quoting In re Murchison, 349 U.S. 133, 136 (1955)). The test is whether, as an objective matter, “the average judge in his position is ‘likely’ to be neutral, or where there is an unconstitutional potential for bias” (Id.). The court held that the constitution forbade a judge from hearing a case when the judge previously served as a prosecutor in the very same case. The Constitution is not a trifling matter to be invoked by parties who seem determined to avoid trial.
The NCAA then cites four California cases. The first one is Solberg v. Super. Ct. In Solberg the judge was disqualified. The NCAA quotes an amici brief submitted by trial court judges, though the NCAA quote left out a key phrase, “but rather the probable fact of prejudice” that is the issue (Solberg, (1977) 19 Cal. 3d 182, 193 fn. 10).
They cite Flier v. Super. Ct., (1994) 23 Cal. App. 4th 166. Left unsaid is that the Court of Appeal reversed the disqualification of the trial judge. The Court of Appeal stated, among other things, “[J]udicial responsibility does not require shrinking every time an advocate asserts the objective and fair judge appears to be biased. The duty of a judge to sit where not disqualified is equally as strong as the duty to not sit when disqualified” (23 Cal. App.4th at 171). The court stated the actual test: “The challenge must be to the effect that the judge would not be able to be impartial toward a particular party” (Id. at 172). It is hard to see how Flier helps the NCAA.
They also cite United Farm Workers v. Super. Ct. (1985) 170 Cal. App.3d 97. In UFW, just as with Solberg and Flier, the motion does not present any facts that suggest even the remotest similarities to the McNair matter. Instead, the motion takes quotes in support of its bald argument. In UFW, the disqualification motion was made during trial. The motion was denied and a mid-trial writ was sought. The writ was denied. The court instructed that “the litigants’ necessarily partisan views not provide the applicable frame of reference” (Id. at 105).
The motion then purports to demonstrate that the average objective person would find that judicial bias exists. This is so because the trial court judge attended USC. That is all. Of course a significant proportion of the judges in Southern California attended USC, or UCLA so merely using a judge’s school to show bias, then if USC judges would favor UCS then UCAL judges must have an anti-USC bias.
The motion then states that USC is essentially an interested party. Cute, but USC is not a party to the case, nor has USC taken a position in the case so that argument fails. Moreover, even if USC was in fact a party, the trial court judge would not be disqualified. In Stanford University v. United Farm Workers, Stanford was a party in the case, and the judge had been active in alumni affairs as a member of the Law School Board of Visitors. Yet the Court of Appeal denied the effort to disqualify the judge because even such prior intense alumni activity was not enough to disqualify the judge (Stanford University v. Super. Ct. (1985) 173 Cal. App. 3d 403).
The NCAA next adds quotes from obscene bloggers as if that has anything to do with the judge. Moreover, such quotes prove beyond all doubt that these bloggers are not the “average reasonable person” and thus have nothing to do with the pending motion other than add irrelevant color. Nevertheless, the NCAA argues that the obscene bloggers and USC-fan websites do in fact represent “the average man on the street” (Brief at 10).
If that is the point, then one could conclude that the average reasonable person has concluded that the NCAA are “Bastards” who should be sodomized (Brief at 7). If it is not the NCAA’s position, then they have simply trotted out the Parade of Horribles for media purposes.
The motion quotes press articles to show bias, as if inaccurate journalism could form the basis of a motion to disqualify a judge. One such article said that the current judge was a classmate of Pat Haden at USC. So too were thousands of other students. This may also cut the other way. After Pat Haden took over as USC Athletic Director he immediately accepted the NCAA sanctions. He even sent back the school’s copy of Reggie Bush’s Heisman Trophy. If the current judge was influenced by classmate status to Haden, then it is at least as likely that he would accept Haden’s judgment over that of Todd McNair, so perhaps it is McNair who should be nervous.
Towards the end of this section, the NCAA causally mentions that a prior judge “improperly” decided the question of his own bias, relying on the United Farm Workers and Stanford cases. No more detail is given, but one can conclude from this snippet that the NCAA seems to be at war with the Los Angeles Superior Court bench. Moreover, the Stanford case is far closer to the McNair facts than anything alleged or asserted by the NCAA. That judge was not just a Stanford alumni but also a former member of the Board of Visitors, yet that was not enough to justify recusal.
Thus all part two of the motion presents are silly quotes from bloggers and journalists commenting on the case, and cannot tie those comments to the judge. It may rally the NCAA staff but it fails as a matter of law to show any reason why the judge should be disqualified, though it does cite four cases that denied such motions in even stronger circumstances.
Conclusion
The NCAA may or may not have factual grounds sufficient to seek disqualification. Their motion papers claim that at a hearing the judge stated that the NCAA’s conduct was “over the top” and the public had a right to know about the “just unbelievable machinations” involved in the NCAA’s report. Based on the actual documents as described in the Court of Appeal, these words sound restrained.
The NCAA’s cited authorities do not support the attempt to disqualify the judge. This case is ultimately about NCAA actions that violated NCAA rules while destroying a person’s career. The NCAA needs to take a closer look in the mirror to spot the problem, and not at the bench.
Note: This article was written without reviewing any of McNair’s opposition papers or following consultation with McNair’s counsel, or for that matter, anyone else.
Birren is the former general counsel of the Oakland Raiders.
