Lead Opinion
Opinion
Nеarly 40 years ago, our Supreme Court reaffirmed “that Code of Civil Procedure section 170.6, which provides for the disqualification of trial judges on motion supported by an affidavit of prejudice, does not violate the doctrine of the separation of powers or impair the independence of the judiciary.”
No fundamental adjustments to this balance have been made by either the Legislature or the Supreme Court in the ensuing 39 years. Respondent Superior Court of Orangе County (respondent court), however, refused to grant a section 170.6 motion hied on behalf of petitioner, the People of the State of California, because the Orange County District Attorney (district attorney) invoked an improper blanket challenge to a particular judge that substantially disrupted the respondent court’s operations. As interpreted by respondent court, Solberg did not foreclose a separation of powers challenge to the executive branch’s apparent abuse of sechon 170.6 under the circumstances of this case.
In our view, however, Solberg anticipated circumstances very similar to those faced here. Rightly or wrongly, the Solberg court concluded the peremptory challenge at issue would not constitute a separation of powers violation. Because we are bound by the reasoning in Solberg, we must grant the petition for writ of mandate.
PROCEDURAL HISTORY
In December 2014, real party in interest Rito Tejeda was charged with murder. (Pen. Code, § 187, subd. (a).) On December 3, 2015, respondent court assigned Tejeda’s case to Judge Thomas Goethals for ah purposes and set the matter for a pretrial hearing in Judge Goethal’s courtroom. That same day, petitioner moved to disqualify Judge Goethals pursuant to section 170.6. The motion was supported by a declaration executed under penalty of perjury by an attorney with the district attorney’s office. The declaration represented that Judge Goethals “is prejudiced against the party or the party’s attorney, or the interest of the party or party’s attorney, such that the declarant cannot, or believes that he/she cannot, have a fair and impartial trial or hearing before the judicial officer.”
Later that day, respondent court denied the motion to disqualify Judge Goethals, “without prejudice to the People’s or the defendant’s right to seek reсonsideration of this order, should they choose to do so.” Nohce of entry of the order was served by mail.
FACTUAL RECORD DEVELOPED BY RESPONDENT COURT
The factual record in this matter is unusual. Petitioner did not submit evidence (other than the standard form § 170.6 declaration) with its motion. Tejeda did not oppose the motion, with evidence or otherwise. Instead, respondent court took judicial notice of facts and events outside the scope of this particular case in supporting its conclusions (1) the district attorney’s office was engaged in improper “ ‘blanket papering’ ” of Judge Goethals in murder cases, and (2) the effect of the blanket challenge was to “substantially disrupt[] the orderly administration of criminal justice in Orange County.” We summarize the lengthy recitation of facts from respondent court’s order.
Judge Goethals practiced criminal law for more than 20 years, both as a member of the district attorney’s office and as a private attorney representing criminal defendants. Since his appointment to the bench in 2003, Judge Goethals has presided over exclusively criminal matters, including “long cause cases” (the most complicated murder cases). “Judge Goethals has prosecuted capital cases, defended capital cases, and . . . presided over capital cases
In January 2012, Judge Goethals was assigned the long cause case of People v. Dekraai (Super. Ct. Orange County, 2012, No. 12ZF0128). In January 2013, Judge Goethals granted a defense discovery request pertaining to an inmate informant to whom defendant Dekraai had allegedly made incriminating statements. After receiving discovery materials, the defense filed three motions in January and February 2014 (to dismiss the death penalty allegations, to disqualify the district attorney’s office based on an alleged conflict of interest, and to exclude from evidence any statements made by Dekraai to the informant). These motions were based on defense allegations that members of the district attorney’s office and law enforcement officers had engaged in misconduct (perjury, subornation of perjury, intentional violation of criminal defendants’ constitutional rights, and obstruction of justice) in connection with the use of informants. Judge Goethals refused the prosecution’s request to deny the motions without an evidentiary hearing.
Judge Goethals began hearing evidence on all three motions on March 18, 2014. On August 4, 2014, Judge Goethals made factual findings that (1) law enforcement officers intentionally moved informants at the jail in an attempt to obtain incriminating statements, and (2) prosecutors had committed negligent violations of Brady v. Maryland (1963)
In the wake of these rulings, the district attorney’s use of peremptory challenges against Judge Goethals changed dramatically. The raw numbers are stark. “For over three years, from December 7, 2010 through February 24, 2014, Judge Goethals was assigned 35 murder cases for trial and was disqualified once by the People. From February 25, 2014 through September, 2015, a period of [18] months, Judge Goethals was assigned 49 murder cases for trial and was disqualified 46 times by the People.” (Italics omitted.) The pattern continued with this case and others assigned to Judge Goethals in December 2015.
Respondent court’s order then turned to the consequences of the district attorney’s repeated disqualification of Judge Goethals. “Six months after the People began disqualifying Judge Goethals, the negative impact became readily apparent: the four other long cause judges had significantly more murder cases than Judge Goethals. This raised concerns because . . . Penal Code section 1050 requires the judiciary to have courts available for trial at the earliest time possible. Furthermore, ... the purpose of having a long cause judge—one with a low-enough caseload to allow a seasoned judge to give sufficient time to a murder trial—was being defeated.”
Respondent court’s multiple efforts to reassign murder cases to Judge Goethals were all rebuffed by section 170.6 challenges from the district attorney’s office. “By April, 2015, [respondent court] was in a crisis. New murder cases were being added to its inventory, which included unresolved murder cases. In addition, a backlog of hundreds of other felony cases was becoming a significant problem. Short cause judges were unavailable to try the shorter felony cases because they were presiding over two-to-three-week murder trials. To solve this problem, long cause judges were assigned short cause cases, taking away the time necessary to be devoted to long cause murder cases.”
Assignments were shuffled between the various judicial officers at respondent court, in the hope that the blanket challenge phenomenon would be temporary. But it continued unabated through the autumn of 2015.
“[T]he effect of the People’s ‘blanket’ disqualification of Judge Goethals has caused murder cases and other felony cases to languish unnecessarily. It
The court observed that it could simply reassign Judge Goethals, but declined to do so: ‘“The very thought of this option is offensive. To allow a party to manipulate the court into removing a judge from hearing certain criminal cases—when that judge, in the performance of his judicial duties, has conducted a hearing which exposed that same party’s misconduct—not only goes against the very cornerstone of our society: the rule of law, but would be a concession against judicial independence.” (Italics omitted.)
DISCUSSION
Peremptory Challenges Under Section 170.6
‘“[S]ection 170.6 provides that no superior court judge shall try any civil or criminal action involving a contested issue of law or fact when it is established that the judge is prejudiced against any party or attorney appearing in the action.” (The Home Ins. Co. v. Superior Court (2005)
Peremptory challenges under section 170.6 ‘“are presented in the form of a motion, but they fall outside the usual law and motion procedural rules, and are not [in the typical case] subject to a judicial hearing.” (Frisk v. Superior Court (2011)
The atypical power conferred upon parties (and their attorneys) by section 170.6 is not “an unconstitutional delegation of legislative and judicial powers
Appellate Court Review of Order Denying Peremptory Challenge
“An order denying a peremptory challenge is not an appealable order and may be reviewed only by way of a petition for writ of mandate.” (Daniel V. v. Superior Court (2006)
But a trial court has no discretion to refrain from following binding Supreme Court authority. (See Auto Equity Sales, Inc. v. Superior Court (1962)
In our view, petitioner is entitled to writ relief because Solberg cannot be “fairly distinguished” (Trope v. Katz (1995)
Solberg—Factual and Procedural Context
The factual and procedural context of Solberg, supra,
Before the superior court judge issued his writ of mandate, two of the four real parties in interest (i.e., the defendants accused of prostitution) filed section 170.6 motions to disqualify the superior court judge. (Solberg, supra,
Thus, the Solberg court had before it two distinct but related matters—the judgment (a writ of mandate compelling the disqualification of the municipal court judge), and a writ proceeding (seeking a writ of mandate сompelling the disqualification of the superior court judge). The Solberg opinion disposed of both disputes.
As to the writ proceeding, the Supreme Court rejected the superior court judge’s grounds for refusing to honor section 170.6 motions filed by real parties. (Solberg, supra, 19 Cal.3d at pp. 189-190.) “A writ of mandate will therefore lie to compel [the superior court judge] to vacate his order denying the motion for disqualification. [¶] All orders made thereafter by [the superior court judge] in these proceedings are likewise void, including the judgment directing issuance of a peremptory writ commanding [the municipal court judge] to disqualify herself in the criminal matters.” (Id. at p. 190.) The last paragraph of the opinion ordered with regard to the writ proceeding: “[L]et a peremptory writ of mandate issue as prayed.” (Id. at p. 204.)
Having determined the superior court judge’s orders were void, including the writ of mandate compelling the disqualification of the municipal court judge, the Solberg court was not obligated to review the merits of the judgment. Indeed, the disposition of the appeal in the last paragraph of the opinion was the following: “the appeal is dismissed." (Solberg, supra,
Instead, the majority opinion continued for 14 additional pages, composed of an in-depth review of the constitutionality of section 170.6. The court explained, “the issues presented by the appeal from that judgment will doubtless arise on remand, and we therefore proceed to address their merits.” (Solberg, supra,
It is the 14 pages of, strictly speaking, unnecessary analysis that pertains to the separation of powers issue raised in this case. Is this portion of Solberg composed solely of dicta? Can it be deemed a holding, despite the fact that it was not necessary to the disposition of the appeal?
“ ‘Only statements necessary to the decision are binding precedents . . . .’ [Citation.] ‘The doctrine of precedent, or stare decisis, extends only to the ratio decidendi of a decision, not to supplementary or explanatory comments which might be included in an opinion.’ ” (Gogri v. Jack in the Box Inc. (2008)
Moreover, “ ‘[e]ven if properly characterized as dictum, statements of the Supreme Court should be considered persuasive. [Citation.]’ [Citation.]” (Hubbard v. Superior Court (1997)
Solberg’s Separation of Powers Analysis
As presented to the Supreme Court, the Solberg appellants’ principal contention was “that section 170.6 is unconstitutional because it violates the doctrine of separation of powers [citation] and impairs the independence of the judiciary [citation].” By not requiring any reasons for disqualification to be stated, “the statute in effect delegates ... the judicial рower to determine whether [a ground for disqualification] exists in the particular case in which it is invoked.” (Solberg, supra, 19 Cal.3d at pp. 190-191.)
Solberg rejected appellants’ contentions, reaffirming the continuing vitality and applicability to criminal cases of Johnson, supra,
The appeal was not limited to generalities. It was contended “that the case at bar [was] an example of’ the abuses engaged in by counsel. The municipal court judge had “dismissed a number of prostitution cases after ruling that the defendants therein were the victims of discriminatory law enforcement practices based on the suspect classification of sex because in each instance only the female prostitute, and not her male customer, was arrested and prosecuted. . . . [Prostitution charges against the individual real parties in interest herein came before [the municipal court judge] for the purpose of setting a date to hear their motions to dismiss on the same ground. The People moved to disqualify her under section 170.6 allegedly because of a perceived inability to have a fair trial ‘in cases of these kinds in this court’ [citation]. Appellants assert that the circumstances and wording of the motion
The Solberg court assumed the charges of abuses were true. It did ‘“not condone such practices, nor [did it] underestimate their effect on the operation of our trial courts.” (Solberg, supra,
In addressing the appellants’ challenge to the statute, the court did not indicate whether it viewed the challenge to be a ‘“facial” or an “as applied” challenge. Reviewing the discussion, we conclude the court considered it as both. Reliance on Johnson, supra,
Most pertinent to the petition before us is Solberg’s analysis of the contention that Johnson was distinguishable because it was a civil case. “The argument is that in all criminal actions the plаintiff and its attorney remain the same, i.e., the People of the State of California represented by the district attorney; the defendant is different in each case, but in most instances is represented by the same counsel, the public defender. This uniformity of either party or counsel assertedly permits the ‘institutionalization’ of many of the abuses discussed herein, and in particular the abuse known as the ‘blanket challenge.’ The practice occurs when as a matter of office policy a district attorney or a public defender instructs his deputies to disqualify a certain disfavored judge in all criminal cases of a particular nature ... or in all criminal cases to which he is assigned. The former policy will prevent the judge from hearing any cases of that type, while the latter policy will force his removal from the criminal bench and his reassignment to a civil department.” (Solberg, supra, 19 Cal.3d at pp. 201-202, fn. omitted.)
Solberg rested its analysis regarding blanket challenges on two supports. First, it recalled the “self-limiting aspects of abuse of section 170.6”—i.e., both the technical limits in the statute itself (only one challenge is available to a party and it must be used in a timely fashion) and the offsetting practical concerns of district attorneys (not antagonizing the bench and not delaying the administration of justice and the real possibility the substitute judge who entered the case may be even less satisfactory to the lawyer or his cliеnt than the judge whom they disqualify). (Solberg, supra,
In a footnote, Solberg specifically addressed the prospect of a blanket challenge forcing a court to remove a judge from a criminal assignment. Solberg held that even “this radical consequence” is still distinguishable from cases outside the section 170.6 context in which separation of powers violations were found. (Solberg, supra,
Nothing in Solberg indicates that its analysis was limited to circumstances in which only four challenges were at issue (or that if the Solberg appellants had proven that the municipal court judge had been excluded 50 times and that this undermined court operations, such a showing would have been sufficient). Indeed, nothing in Solberg leaves room for the consideration of evidence or a different result if the evidence is substantial enough.
Instead, Solberg rejected the separation of powers challenge, concluding that abuses committed under the authority of the statute were an “inconsequential price to be paid for the efficient and discreet procedure provided in section 170.6.” (Solberg, supra,
Solberg is binding authority. Solberg anticipated the circumstances presented here, and its reasoning, as described above, prevents respondent court or this court from entertaining the argument the district attorney’s use of peremptory challenges resulted in a separation of powers violation. A writ of mandate must issue compelling respondent court to vacate its order and to assign this case to a different judge.
The Supreme Court Should Revisit Solberg
After considering “experience with the statute [in the preceding] decades and as applied ... in a criminal context” (Solberg, supra,
Solberg may be “good law,” in thе sense that it is a binding case that has not been abrogated or reversed, but we question its efficacy in the context of the current reality of the justice system.
Case law from another type of constitutional claim shows that the provisions of section 170.6 are not absolute. A section 170.6 challenge made on the basis of the judge’s race is subject to an equal protection claim. (See People v. Superior Court (Williams) (1992)
In Williams, supra,
If the procedural approach offered by Williams, or something similar, were to be adopted in separation of powers cases, only a prima facie showing of improper blanket challenges by a governmental entity would result in the governmental entity’s being required to justify its use of section 170.6. Respondent court’s order reflects that approach to some extent, by offering petitioner the opportunity to present evidence at a hearing in which respondent court would reconsider its denial of the section 170.6 motion. Other states similarly have declined to make peremptory challenge rights absolute when blanket papering becomes a threat to judicial independence. (See State v. City Court of City of Tucson (1986)
In addition to the rigid rule it laid down, we also find fault with the specific analysis of the Solberg court pertaining to blanket challenges. First, the Solberg court was convinced that “the self-limiting aspects of abuse of section 170.6” would come into play before a blanket challenge became a dire threat to the operation of courts. (Solberg, supra,
Second, the reasoning employed in Solberg is offensive to the judiciary. Solberg suggests that “unwarranted ‘blanket challenges’ . . . may well . . . antagonize the remaining judges of the court. . . .” (Solberg, supra,
Third, as to blanket challenges, Solberg can fairly be characterized as double dictum. As explained above in this opinion, the entire 14 pages of separation of powers analysis in Solberg is arguably dicta. Within the section of the opinion dealing specifically with blanket challenges, Solberg placed great stock in the prior analysis of section 170.6 in a judicial ethics opinion, McCartney, supra,
In sum, we agree with the dissenting view of Justice Tobriner: “the use of ‘blanket’ challenges under section 170.6 to disqualify a judge because of his judicial philosophy or his prior rulings on questions of law seriously undermines the principle of judicial independence and distorts the appearance, if not the reality, of judicial impartiality. . . . [We] do not believe that the judiciary [should be] helpless to prevent such an abuse of the section 170.6 disqualification procedure, particularly in a case—such as the present one—in which the improper basis of the disqualification motion clearly appears on the face of the record.” (Solberg, supra,
As described by respondent court, the disruption to the operations of that court is not an “ ‘inconsequential price to be paid for the efficient and discreet procedure provided in section 170.6.’ ” Years of budget cuts to the California trial courts have taken their toll on all court operations. The chaos that has resulted from the abuse of section 170.6 affidavits is all the more troubling because of the judicial branch’s current funding reality. Like all trial courts, the Orange County Superior Court struggles to perform its constitutional and statutorily mandated functions. As courts work to keep doors open and to provide timely and meaningful access to justice to the public, the extraordinary abuse of section 170.6 is a barrier to justice and its cost to a court should be reconsidered. Like at least one court before us (Autoland, Inc. v. Superior Court (1988)
DISPOSITION
Let a peremptory writ of mandate issue directing respondent court (1) to vacate its order denying petitioner’s section 170.6 motion and (2) to issue a
Notes
All further statutory references are to the Code of Civil Procedure, unless otherwise indicated.
In two other cases. Judge Goethals found Brady violations and disqualified one specific deputy district attorney by rulings announced in February and March 2014.
“Some courts may be more inclined to grant a statutory writ without requiring a factual showing of ‘inadequate legal remedy’ and ‘irreparable harm’ [citation] ... on the theory the Legislature has in effect determined these questions in the petitioner’s favor by authorizing the writ relief. But this approach is not uniformly adopted. Other courts require the petitioner to affirmatively establish these two prerequisites in all cases, notwithstanding statutory authority for the writ.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶ 15:87, p. 15-46.) Published cases holding that courts have wrongly denied section 170.6 motions do nоt include an explicit analysis of whether the petitioners in those cases would be irreparably harmed by a failure to provide relief. (See, e.g., Manuel C. v. Superior Court (2010)
A contrary argument made by the district attorney at oral argument is that the remainder of the opinion was necessary to the court’s decision to issue the writ commanding the superior court judge to recuse himself. Before indicating a writ would issue, the court stated: “No question is raised as to either the timeliness or the formal sufficiency of the affidavit of disqualification filed by the real parties in interest; and as hereinafter appears, we have concluded that the statute is constitutional.” (Solberg, supra,
McCartney observed in a footnote: “The blanket nature of these filings ... in itself reflects a measure of impropriety. As the objective of a verification is to insure good faith in the averments of a party [citation], the provision in . . . section 170.6 for the showing of prejudice by affidavit requires a good faith belief in the judge’s prejudice on the paid of the individual party or counsel filing the affidavit in each particular case. [Citations.] The ‘blanket’ nature of the written directive issued by the public defender arguably contravened this requirement of good faith by withdrawing from each deputy the individual decision whether or not to appeal' before [a particular' judge]. To phrase it another way, the office policy predetermined that prejudicе would be claimed by each deputy without regal'd to the facts in each case handled by the office, thereby transforming the representations in each affidavit into bad faith claims of prejudice.” (McCartney, supra.
We confine our analysis in this section to the question of whether Solberg overreached in its separation of powers analysis with regard to the specific problem of blanket challenges in criminal law cases. We do not take issue with the facial constitutionality of section 170.6 or the desirability in general of section 170.6 as a matter of policy. (Cf. Burg, Meeting the Challenge: Rethinking Judicial Disqualification (1981) 69 Cal. L.Rev. 1445 [advancing thesis that peremptory challenges are an undesirable solution to problems of judicial disqualification].)
Concurrence Opinion
Concurring.—As an intermediate appellate court we must follow Supreme Court precedent. This axiom is often misunderstood by the general public, which may assume we are free to decide each case based on our innate sense of what is “right” or what we believe the law should be. In reality, the outcome of many appeals depends on whether an earlier Supreme Court decision covers the matter before us or fairly may be distinguished. Because I conclude the Supreme Court’s opinion in Solberg v. Superior Court (1977)
Respondеnt court denied petitioner’s section 170.6 motion because it concluded the motion was part of the Orange County District Attorney’s (district attorney) coordinated campaign to “blanket paper” Judge Thomas Goethals to prevent him from hearing murder trials in retaliation for Judge Goethals’s rulings in three earlier murder cases. As described more fully in both the majority and dissenting opinions, Judge Goethals found the district attorney’s office repeatedly engaged in misconduct in violation of the defendants’ constitutional rights, and in one of the cases he found the misconduct created a conflict of interest requiring the office’s recusal. Respondent court found the campaign to prevent Judge Goethals from hearing long cause murder trials substantially interfered with the court’s ability to administer criminal justice in Orange County, and thereby violated the separation of powers doctrine.
In Solberg, however, the Supreme Court concluded blanket papering does not constitute a violation of the separation of powers doctrine even if the widespread misuse of section 170.6 prevents a judge from hearing all or certain types of cases. (Solberg, supra, 19 Cal.3d at pp. 201-204.) In particular, Solberg established the validity of section 170.6 “as applied ... in a criminal context,” despite the fact that institutional parties like the district attorney or public defender may engage in blanket papering. (Solberg, at p. 187.)
The dissent views Solberg as dealing only with a facial challenge to section 170.6, but acknowledges “[e]ven if Solberg implied section 170.6 was constitutional as applied to the facts of that case, it is only binding precedent with reference to those facts.” (Dis. opn., post, at p. 926, fn. 2.) The dissent also distinguishes the “character and magnitude” of the blanket challenges here from the four challenges lodged in Solberg. (Dis. opn., post, at pp. 929-931.) I read Solberg differently. Solberg found that a quantitative difference in the number of challenges did not violate the separation of powers doctrine, and its broad discussion of blanket challenges shows the Supreme Court did not intend to limit the precedential value of its decision to cases involving few challenges. Solberg acknowledged blanket challenges by the district attorney or public defender might “force” the judge’s removal from the criminal bench, presumably because the number of challenges would interfere with the court’s operations by diverting more cases to other judges (Solberg, supra,
In sum, Justice Thompson’s analysis may have formed the basis for our decision if we were writing on a clean slate. Solberg, however, anticipated the circumstances we face in this case and fоund that blanket challenges under section 170.6 did not violate the separation of powers doctrine.
Not only do I agree with Justice O’Leary’s conclusion Solberg compels us to grant the petition, I also agree with her criticism of Solberg’s analysis. I write separately to discuss my further reservations about Solberg’s reasoning. Because Solberg defined blanket challenges as nothing more than “ ‘bad faith claims of prejudice’ ” under section 170.6, I question how Solberg nevertheless could conclude blanket papering by a district attorney passes constitutional muster. (Solberg, supra,
The Predecessor Statute and the Court’s Earlier Judicial Disqualification Decisions
California law long has allowed a party to disqualify the judge assigned to hear a case based on an evidentiary showing and independent judicial determination of bias, prejudice, interest, or other disqualifying characteristic. (Johnson v. Superior Court (1958)
In Austin, the Supreme Court held former section 170.5 unconstitutional as an “unwarranted and unlawful interference with the constitutional and orderly processes of the courts” because it made “the exercise of judicial power, duty and responsibility subject to the whim and caprice of a lawyer or litigant.” (Austin, supra, 11 Cal.2d at pp. 79, 76.) Although it acknowledged the Legislature’s authority to establish reasonable regulations concerning the disqualification of a judge (id. at pp. 75-76), the Supreme Court nonetheless explained that placing “in the hands of a litigant uncontrolled power to dislodge without reason or for an undisclosed reason, an admittedly qualified judge from the trial of a case in which forsooth the only real objection to him might be that he would be fair and impartial in the trial of the case would be to characterize the statute not as a regulation but as a concealed weapon to be used to the manifest detriment of the proper conduct of the judicial department” (id. at p. 79). The court explained this crossed constitutional boundaries because a judge takes an oath to discharge the duties of his office, including the obligation to “determine causes presented to him.” (Id. at p. 75.) A judge must discharge that duty absent “good cause.” (Ibid.)
Austin recognized that several other states had upheld the constitutionality of statutes that allowed a “so-called ‘peremptory challenge’ ” to a judge, but it distinguished those statutes on the ground they uniformly required the party to file a declaration under oath asserting the judge was biased or prejudiced against the party, even though many of the statutes did not allow judicial inquiry into the basis for that assertion. (Austin, supra,
Nearly 20 years later, the California Legislature enacted section 170.6 modeled after the statutes from other states discussed in Austin. (Solberg, supra,
Because section 170.6 does not require proof of prejudice, the Supreme Court recognized a litigant may abuse the statute by disqualifying a judge to obtain a perceived litigation benefit, such as a trial continuance while a new judge is assigned or the assignment of a new judge the litigant believes may be more favorable. Johnson concluded this potential for abuse did not render the statute unconstitutional because the Legislature determined the statute’s benefits outweighed the potential problems caused by these abuses, and the Legislature also included several safeguards in the statute to minimize its abuse, including a requirement the party or its attorney show good faith by declaring under oath that the judge is prejudiced.
One year after Johnson, the Legislature amended the statute so that it also would apply to criminal actions. (See Solberg, supra,
In Solberg, the Supreme Court revisited section 170.6’s constitutionality, and again affirmed the statute’s validity. (Solberg, supra,
Solberg also considered the courts’ experience with section 170.6 during the two decades following Johnson to determine whether the statute’s actual operation rendered it unconstitutional as applied based on various abuses. (Solberg, supra,
Nonetheless, Solberg concluded the impact of these abuses on the courts did not render section 170.6 unconstitutional as applied for two reasons. First, the Supreme Court was aware of these abuses when it first upheld the statute’s constitutionality in Johnson, and the experience with section 170.6 in the decades following Johnson mеrely “added quantitatively but not qualitatively to [the court’s] understanding of the problem.” (Solberg, supra,
Of particular relevance to this case, Solberg also considered the constitutionality of section 170.6 as applied in a criminal context and an abuse of the statute unique to criminal cases: the “ ‘blanket challenge.’ ” (Solberg, supra,
Quoting from an earlier judicial misconduct case involving a judge’s intemperate reaction to the public defender’s policy challenging the judge in every case, Solberg explained a blanket challenge lacks the good faith belief in prejudice that section 170.6 requires in each individual case: “ ‘The “blanket” nature of the written directive issued by the public defender arguably contravened this requirement of good faith by withdrawing from each deputy the individual decision whether or not to appear before [Judge McCartney]. To phrase it another way, the office policy predetermined that prejudice would be claimed by each deputy without regard to the facts in each case handled by the office, thereby transforming the representations in each affidavit into bad faith claims of prejudice.’ ” (Solberg, supra,
Although Solberg recognized entirely removing a judge from the criminal bench was a “radical consequence” of a blanket challenge, the court concluded the impact of a blanket challenge “is different not in kind but only in degree” from the abuses considered in Johnson, “and that difference does not warrant a contrary result.” (Solberg, supra,
Finally, Solberg suggested that the potential for misuse of section 170.6 in the criminal context was limited by the nature of the district attorney’s and public defender’s practice. Because the district attorney’s and public defender’s entire practice is concentrated before the same criminal judges, they must “realize that ... if [they or their] deputies file unwarranted ‘blanket challenges’ against a particular judge the effect may well be to antagonize the remaining judges of the court, one of whom will be assigned to replace their unseated colleague, and the presiding judge, who will make that assignment.”
Solberg’s Inconsistencies
Solberg concluded there was no meaningful distinction between the abuses of section 170.6 considered in Johnson and the abuse created by institutionalized blanket challenges in criminal cases, and therefore Johnson’s analysis regarding section 170.6’s constitutionality compelled the conclusion the statute also was constitutional as applied to a blanket challenge. (Solberg, supra,
As explained above, Johnson and Solberg found section 170.6 constitutional because the Legislature may establish reasonable regulations concerning the disqualification of judges, prejudice or bias is a permissible ground for disqualifying a judge, and section 170.6 establishes a reasonable procedure for disqualifying a judge based on prejudice because the statute requires the litigant or attorney to show a good faith belief in the judge’s prejudice by stating that belief under oath. (Solberg, supra, 19 Cal.3d at pp. 191-193.)
In Austin, the Supreme Court found the predecessor to section 170.6 unconstitutional because it allowed a party to disqualify a judge without
Solberg defined a blanket challenge as a bad faith claim of prejudice because the claim is made based on a general policy determination by the district attorney or public defender rather than a good faith belief the judge is prejudiced in any particular case.
Moreover, in both Solberg and Johnson, the Supreme Court rejected the challenges to section 170.6 based on the many forms of abuse other than a blanket challenge by stating the court would not assume “ ‘there will be a
Conclusion
The statutory scheme under section 170.6 prohibits a trial court from exploring the reasons a party filed a challenge to a particular judge. A court must accept the challenge, even if the court harbors a reasonable suspicion a party misused the procedure for an impermissible reason. (Solberg, supra,
All statutory references are to the Code of Civil Procedure.f
The dissent and respondent court distinguish Solberg on the ground it involved a separation of powers conflict between the legislative and judicial branches of government, but the district attorney’s blanket use of section 170.6 in this case involves a conflict between the executive and judicial branches. I disagree.
Respondent court does not challenge the district attorney’s use or exercise of any executive power. Rather, the power or right at issue is one the Legislature created and delegated not only to the district attorney, but to all litigants and attorneys in any civil or criminal action. Absent section 170.6, the district attorney has no inherent executive right or power to
Respondent court concluded the unconstitutional interference with its powers arose from the scope and basis for the district attorney’s challenges, not from the fact that it was the district attorney making the challenges. Although the public defender is not a member of the executive branch, it too potentially could interfere with the court’s powers in the same manner by lodging blanket challenges to a particular judge. Indeed, even a single law firm specializing in an area of civil law potentially could interfere with the court’s powers by exercising a blanket challenge to the only judge hearing cases involving that area of the law.
The separation of powers conflict at issue therefore arises between the legislative and judicial branches. Nonetheless, regardless how one views the separation of powers conflict, Solberg anticipated the circumstances presented in the present case and found blanket challenges by a district attorney would not create a separation of powers violation.
Other safeguards in section 170.6 include limiting each side in a case to one challenge, placing strict time limits on when to assert a challenge, limiting continuances based upon a request to disqualify a judge, and requiring prompt assignment of a new judge. (Johnson, supra,
I share Justice O’Leary’s concern about the court’s conclusion that wholesale misuse of section 170.6 would not occur because of the threat judges would retaliate against any attorney or office that misuses the statute. The constitutionality of a statute designed to minimize even the appearance of bias or prejudice cannot turn on the willingness of judges to violate their' ethical duty to act impartially.
The Supreme Court’s imputation of bad faith to blanket challenges may be overinclusive because under certain circumstances a blanket challenge to a judge could be brought in good faith if the district attorney or public defender reasonably believes the challenged judge is prejudiced against the entire office. That is not the case here, however. As explained above, substantial evidence supports respondent court’s finding that the district attorney asserted its blanket challenge to Judge Goethals in retaliation for his legal conclusion in earlier cases that the district attorney had engaged in misconduct or prosecutorial error under Brady v. Maryland (1963)
Solberg and Johnson also rejected the argument that the various abuses of section 170.6 unconstitutionally disrupted court operations, explaining the Legislature considered the abuses and associated problems in enacting the statute and concluded the statute’s benefits outweighed those problems. (Solberg. supra. 19 Cal.3d at pp. 196, 203-204; Johnson, supra.
Dissenting Opinion
Dissenting.—I respectfully dissent. The court’s decision today transforms Code of Civil Procedure section 170.6 (section 170.6) into “a concealed weapon to be used to the manifest detriment of the proper conduct of the judicial department.” (Austin v. Lambert (1938)
Judge King did not abuse his discretion by denying the district attorney’s motion to disqualify Judge Goethals under section 170.6. Judge King found the motion ensued from Judge Goethals’ misconduct rulings against the district attorney’s office. Judge King concluded the motion violated the separation of powers doctrine and undermined the independence of the judiciary. Judge King’s factual findings are supported by substantial evidence, his legal conclusion is correct, and his ruling was not arbitrary or capricious.
STANDARD OF REVIEW
We review an order denying a section 170.6 peremptory challenge for abuse of discretion. (Grant v. Superior Court (2001)
DISCUSSION
1. Judge King Did Not Abuse His Discretion by Denying the District Attorney’s Motion.
Judge King’s factual findings are supported by substantial evidence, his legal conclusion is correct, and his application of the law to the facts was not arbitrary or capricious. Accordingly, Judge King did not abuse his discretion by denying the district attorney’s motion to disqualify Judge Goethals.
ci. Judge King’s Factual Findings Are Supported by Substantial Evidence.
Judge King found: (1) the disparity between the district attorney’s disqualifications of Judge Goethals before and after February 24, 2014, was not coincidental; and (2) the disparity ensued from Judge Goethals’s rulings that prosecutors and police officers had committed misconduct. These factual findings are supported by substantial evidence, as set out below.
The evidence is undisputed.
This dramatic change in the district attorney’s disqualifications of Judge Goethals under section 170.6 coincided with his misconduct rulings against them in three other cases. On February 24, 2014, in two “Mexican Mafia” cases, Judge Goethals found a deputy district attorney intentionally failed to comply with his discovery obligations under Brady v. Maryland (1963)
Beginning in March 2014 and continuing through March 2015, Judge Goethals conducted a series of extraordinary hearings on defense motions in People v. Dekraai (Super. Ct. Orange County, 2012, No. 12ZF0128). The motions alleged several deputy district attorneys and members of law enforcement conspired to commit perjury, suborn perjury, obstruct justice, and intentionally violate the defendant’s constitutional rights under Brady and Massiah v. United States (1964)
The district attorney conceded the Massiah claims and Judge Goethals concluded substantial evidence supported the Brady claims. He found two jail deputies either lied or willfully withheld material information. Furthermore, he found the district attorney had an actual conflict of interest, which had deprived the defendant of due process. Consequently, Judge Goethals excluded statements the defendant made to the jailhouse informant and recused the district attorney’s office in Dekraai.
On February 25, 2014—the day after Judge Goethals issued his tentative ruling in the Mexican Mafia cases—the district attorney disqualified him for the first hme in a gang murder case. Since then, the district attorney has disqualified him in every gang murder case assigned to him. Likewise, shortly after the Dekraai hearings began, the district attorney started disqualifying Judge Goethals in nongang murder cases too. The district attorney has since disqualified him in ah but three nongang murder cases.
Judge King concluded a district attorney’s abuse of section 170.6 can violate the separation of powers and independence of the judiciary clauses of the California Constitution. That is correct, based on basic constitutional principles.
“The California Constitution is ‘the supreme law of our state’ [citation], subject only to the supremacy of the United States Constitution. (Cal. Const., art. III, § 1.)” (California Logistics, Inc. v. State of California (2008)
The separation of powers clause of the California Constitution divides the powers of the state government into three branches, and dictates that “[pier-sons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.” (Cal. Const., art. III, § 3.) This clause “is violated when the actions of one branch defeat or materially impair the inherent functions of another.” (Steen v. Appellate Division of Superior Court (2014)
“The focus in questions of separation of powers is ‘the degree to which [the] governmental arrangements comport with, or threaten to undermine, either the independence and integrity of one of the branches ... or the ability of each to fulfill its mission in checking the others so as to preserve the interdependence without which independence can become domination.’ [Citation.]” (City of Sacramento v. California State Legislature (1986)
The independence of the judiciary clause (Cal. Const., art. VI, § 1) vests the judicial power of this state in the courts. “One of the powers which has always been recognized as inherent in courts, which are protected in their existence, their powers and jurisdiction by constitutional provisions, has been the right to control its order of business and to so conduct the same that the rights of all suitors before them may be safeguarded.” (Lorraine v. McComb (1934)
Taken together, these basic constitutional principles compel thе conclusion that the separation of powers clause prohibits the district attorney (an executive branch agency) from abusing section 170.6 in any manner which materially impairs the inherent powers of the judicial branch. (Cf. Solberg, supra, 19 Cal.3d at pp. 191-192 [powers of court “ ‘can in nowise be
c. Judge King’s Ruling Was Not Arbitrary or Capricious.
Judge King denied the district attorney’s motion. He explained: “Due to the nature and the extent of this executive action, this Court has determined that the prosecution’s consistent filing of section 170.6 motions in murder cases for more than 18 months is a substantial and serious intrusion into the province of the judiciary. It constitutes a threat to the independence of the Orange County judiciary and a violation of the Separation of Powers provision of the California Constitution.”
Judge King’s ruling applied the law to the facts. It was not arbitrary or capricious. It did not exceed the bounds of reason, all of the circumstances being considered, and it did not result in any miscarriage of justice. (See Denham v. Superior Court (1970)
2. Solberg Held Section 170.6 Is Constitutional on Its Face.
In Solberg, the court reaffirmed in a criminal context, its earlier decision in Johnson v. Superior Court (1958)
Solberg was a consolidated proceeding which considered a petition for writ of mandate and an appeal. The court granted the petition and issued a writ of mandate on grounds not relevant to this proceeding. (Solberg, supra, 19 Cal.3d at pp. 189-190, 204.) As a result, the appeal became moot, and the court ultimately dismissed it. (Id. at p. 204.) Nevertheless, because the issues raised by the appeal would “doubtless arise on remаnd,” the court addressed them on their merits. (Id. at p. 190.)
The underlying facts in Solberg were undisputed. “[A] criminal complaint charging Tina Peoples with soliciting an act of prostitution . . . came before Judge Ollie Marie-Victoire .... Defense counsel filed a motion to dismiss the charge .... At that point Deputy District Attorney Edward Rudloff . . . asked to be sworn and made an oral motion to disqualify Judge Marie-Victoire pursuant to . . . section 170.6. The judge declined to disqualify herself. . . .” (Solberg, supra,
“On the following day . . . Rudloff filed a formal written motion under section 170.6 to disqualify Judge Marie-Victoire from hearing the foregoing four pending matters. The motion was supported by his declaration under penalty of perjury substantially in the form prescribed by the statute. Judge Marie-Victoire denied the written motion on the same ground as she had rejected the oral motions.” (Solberg, supra,
On appeal the appellants “principally contended] that section 170.6 is unconstitutional because it violates the doctrine of separation of powers (Cal. Const., art. Ill, § 3) and impairs the independence of the judiciary (Id., art. VI, § 1).” (Solberg, supra, 19 Cal.3d at pp. 190-191.) The Solberg court responded: “In [Johnson], we rejected these identical arguments in sustaining the constitutionality of the statute. We have reviewed the decision in the light of the points raised in the present appeal, and we are convinced the opinion of Chief Justice Gibson therein, properly understood, remains sound law. For the guidance of bench and bar, however, we undertake to restate his reasoning and relate it to the concerns now urged upon us.” (Id. at p. 191, fn. omitted.)
A lengthy discussion followed. At the outset, the Solberg court reiterated the bаsic principle of government underlying the decision in Johnson: “To put the matter affirmatively and more simply, the Legislature may regulate the exercise of the jurisdiction of the courts by all reasonable means.” (Solberg, supra,
Next the Solberg court addressed the contention “that the experience of the courts with the actual operation of the statute during the past two decades reveals such widespread and persistent abuses thereof as to warrant reconsideration of the question and a holding that section 170.6 is now unconstitutional as applied.” (Solberg, supra,
Solberg held: “[T]o the extent that abuses persist in the utilization of section 170.6 they do not, in our judgment, ‘substantially impair’ or ‘practically defeat’ the exercise of the constitutional jurisdiction of the trial courts. Rather, it may be helpful to view them as a relatively inconsequential price to be paid for the efficient and discreet procedure provided in section 170.6. The statute thus remains a reasonable—and hence valid—accommodation of the competing interests of bench, bar, and public on the subject of judicial disqualification.” (Solberg, supra,
3. Solberg Did Not Hold Section 170.6 Was Constitutional as Applied.
Solberg did not hold section 170.6 was constitutional as applied to the facts in that case. It is true the court used the words “as applied” three times. Yet a careful review reveals those words were not used in the sense they are relevant here.
First Solberg stated: “In these consolidated proceedings we are called upon to reconsider [Johnson] in light of the experience with the statute during the intervening two decades and as applied here in a criminal context.” (Solberg, supra,
Later Solberg said: “It is earnestly contended, however, that Johnson is distinguishable [and] . . . that the experience of the courts with the actual operation of the statute during the past two decades reveals such widespread and persistent abuses thereof as to warrant reconsideration of [Johnson] and a
Then Solberg rejected that contention. Specifically, the court held: “We do not condone such practices, nor do we underestimate their effect on the operation of our trial courts. Nevertheless for a number of reasons we are not persuaded that we should reconsider Johnson on this ground and hold the statute invalid as applied.” (Solberg, supra,
Thus, the court in Solberg used the words “as applied” only in reference to events and experiences which occurred after Johnson, and only in the process of reconsidering the holding of Johnson—that section 170.6 is constitutional on its face—and concluding it “should be reaffirmed.” (Solberg, supra,
4. Solberg Did Not Hold Blanket Challenges Cannot Violate the Separation of Powers.
Solberg did not hold a district attorney’s blanket challenge abuse of section 170.6 cannot violate the separation of powers doctrine (as between the executive branch and the judicial branch) and undermine the independence of the judiciary to such an extent that the statute is unconstitutional as applied. Nor could this ever be true. Again all statutes, including section 170.6, must be applied in a manner which is constitutional. So I do not agree with the conclusion that Solberg controls the outcome here.
Solberg only discussed blanket challenge abuses in rejecting the claim “that Johnson is distinguishable because it ruled on the constitutionality of section 170.6 only in a civil setting, and that in a criminal context the statute should be declared invalid primarily because of an asserted difference in the nature of the parties and their counsel.” (Solberg, supra,
McCartney considered a recommendation that a judge be removed, rather than censured, for various acts of misconduct. “One of those acts was to engage in angry and excited dialogues with deputy public defenders who filed affidavits of prejudice against him under section 170.6. [Citation.] Among the judge’s proffered defenses was a claim that the affidavits were filed pursuant
McCartney said: ‘“We find this ‘defense’ to be a slim reed . . . . [¶] [Disrespect on the part of the public defender cannot serve to justify petitioner’s injudicious response. As previously indicated, the Legislature clearly fоresaw that the peremptory challenge procedure would be open to such abuses but intended that the affidavits be honored notwithstanding misuse. [Citations.]” (McCartney, supra, 12 Cal.3d at pp. 537-538, citing, inter alia, Johnson, supra,
At this point, McCartney recited in a footnote: ‘“The blanket nature of these filings, however, in itself reflects a measure of impropriety. As the objective of a verification is to insure good faith in the averments of a party [citation], the provision in . . . section 170.6 for the showing of prejudice by affidavit requires a good faith belief in the judge’s prejudice on the part of the individual party or counsel filing the affidavit in each particular case. [Citations.] The ‘blanket’ nature of the written directive issued by the public defender arguably contravened this requirement of good faith . . . .” (McCartney, supra,
This footnote in McCartney became a subject of disagreement in Solberg. (Compare Solberg, supra, 19 Cal.3d at pp. 203-204 (maj. opn. of Mosk, J.), with id. at pp. 206-207 (cone. & dis. opn. of Tobriner, J.).) Regardless of what one thinks about that disagreement in Solberg, the constitutionality of blanket challenges was not an issue in McCartney, so at most the McCartney court’s statements about them are persuasive dicta, not binding rulings. (See Hubbard v. Superior Court (1997)
With these thoughts in mind, consider what Solberg actually said: ‘“The argument is that in all criminal actions the plaintiff and its attorney remain the same .... This uniformity . . . permits the ‘institutionalization’ of many of the abuses discussed herein, and in particular the abuse known as the ‘blanket challenge.’ ” (Solberg, supra, 19 Cal.3d at pp. 201-202, fns. omitted.) The court continued, ‘“Upon close analysis we conclude this contention is different not in kind but only in degree from the arguments rejected in Johnson, and that the difference does not warrant a contrary result. To begin with, we do not believe the self-limiting aspects of abuse of section 170.6 discussed hereinabove are inoperative in the criminal context.” (Id. at p. 202.) “More importantly, the issue of ‘blanket challenges’ is not new to this court.” (Ibid.)
Solberg concluded, “There is thus no doubt that in McCartney we strongly disapproved of the practice of ‘blanket challenges,’ and we reaffirm that position herein. But it is also manifest from McCartney that we do not believe the practice vitiates the statute .... In short, the possibility of the filing of ‘blanket challenges’ does not distinguish the present criminal proceeding from Johnson, and the reasoning of that decision is equally applicable to the current version of the statute, governing both civil and criminal cases. [Citation.]” (Solberg, supra, 19 Cal.3d at pp. 203-204.)
I see nothing in this discussion of blanket challenges which supports the lead opinion’s conclusion that Solberg “prevents respondent court or this court from entertaining the argument that the district attorney’s use of peremptory challenges resulted in a separation of powers violation.” (Ante, at p. 907.) That the practice does not vitiate the statute on its face does not mean it cannot result in a separation of powers violation as applied.
5. Solberg Can Be Fairly Distinguished from This Case, Both Legally and Factually.
Unlike my colleagues, I believe Solberg can be “fairly distinguished” (Trope v. Katz (1995)
a. The Separation of Powers Issues Are Different.
Solberg concerned the separation of powers between the legislative branch and the judicial branch. The question was: Did the Legislature violate the separation of powers doctrine when it enacted section 170.6 to regulate the judiciary? On this question Solberg reaffirmed the holding of Johnson that
This case concerns the separation of powers between the executive branch and the judicial branch. The question is: Did the district attorney violate the separation of powers clause when it used section 170.6 to retaliate against a judge? Solberg did not consider this question. Again it only considered similar abuses in deciding they do not “vitiate[] the statute” as enacted by the Legislature. (Solberg, supra,
Hence, I cannot agree with the lead opinion conclusion that ‘“In sum and on balance, we are bound by Solberg in our exantination of the separation of powers issue presented.” (Ante, at p. 904.) While the constitutional provisions at issue here and in Solberg are the same (Cal. Const., art. Ill, § 3, art. VI, § 1), the separation of powers questions are not.
b. The Character of the Blanket Challenge Abuses Is Different.
In Solberg, “the People’s motions to disqualify Judge Marie-Victoire in the criminal actions were ‘blanket challenges’ motivated by prosecutorial discontent with her prior rulings of law.” (Solberg, supra,
Here Judge King found the district attorney’s motions to disqualify Judge Goethals were motivated by their discontent with his misconduct rulings against them. They were based on the fact he called them out on their misconduct, and they had “the appearance of attempting to intimidate, punish, and/or silence Judge Goethals, and to send a warning to the other local judges that similar rulings will produce a similar fate.”
In short, the district attorney’s disqualification motions were not “premised on the fact that ‘the People don’t feel that [they] can get a fair trial in cases of these kinds in [Judge Goethals’] court.’ ” (Solberg, supra,
c. The Magnitude of the Blanket Challenge Abuses Is Different.
In Solberg the district attorney disqualified Judge Marie-Victoire in four prostitution cases. Here the district attorney disqualified Judge Goethals in 55
CONCLUSION
The district attorney’s systematic abuse of section 170.6 undermined the principle of judicial independence and violated the separation of powers doctrine. We are not powerless to stop it. The petition should be denied.
A petition for a rehearing was denied August 5, 2016, and the petitions of respondent and real party in interest for review by the Supreme Court were denied November 30, 2016, S236991. Werdegar, J., Liu, J., and Cuéllar, J., were of the opinion that the petition should be granted.
The evidence consists of facts in the case files and other records of respondent court, or facts that are not reasonably subject to dispute and capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Judge King properly
Even if Solberg implied section 170.6 was constitutional as applied to the facts of that case, it is only binding precedent with reference to those facts. (Western Landscape Construction v. Bank of America (1997)