Want to see an example of doing equity? Then look at this opinion.
I like what Justice Croskey does here. And it takes a lot of work -- at least doctrinally -- to get there.
You could easily argue that Justice Croskey gets it wrong; that the arbitration proceeding is void because the order that sent it there was void (because the judge that sent it there was disqualified). There'd definitely be a lot of precedent and doctrine on your side.
But I nonetheless prefer, and find legitimate, Justice Croskey's view that the order is void, but not necessarily the result of the arbitration proceedings, so long as another (non-disqualified) judge subsequently finds that the matter should indeed have been ordered to arbitration. This result makes sense not only for efficiency and finality reasons, but (and, in my mind, more importantly) in order to prevent what Justice Croskey calls "gamesmanship"; e.g., avoiding an adverse result only after the result is clear, and on the basis of an objection that predated the proceeding and that did not substantially affect its results.
I'm a fan of doing equity, at least in certain situations. And I think this is one of them. Even though I know that reasonable minds might well disagree.
P.S. - I caught this right before I hit the publish button. I gotta apologize to Justice Croskey for previously calling him "Justice Crosky". I've done that before, and I was about to do it again. Sorry. My bad. No more errors in that regard by me. (My only defense, by the way, is that I'm far from the only one to have made that particular error. Indeed, the list of people who have misspelled Justice Croskey's name as "Justice Crosky" is a virtual who's who list. Senator Leahy did it in the Senate Judiciary Committee. The California Supreme Court did it in its official minutes. The Court of Appeal has itself done it; indeed, repeatedly. And at least I didn't misspell his name as "Crosskey". Unlike some. Still. Sorry about that. Won't happen again. Much.
