*1 Mar. No. 23449. [S.F. 1977.] al., Petitioners,
DIANA D. SOLBERG et THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN al., FRANCISCO et Respondents; PEOPLE, Party
THE Real Interest. Mar. No. 23469.
[S.F. 1977.] PEOPLE, Respondent,
THE Plaintiff and THE THE SAN FRANCISCO JUDICIAL MUNICIPAL COURT FOR et FRANCISCO DISTRICT OF THE CITY AND COUNTY OF SAN al., Appellants; Defendants al., Appellants.
DIANA D. SOLBERG et Real Parties Interest *4 Counsel
Gilbert & and Ruth Astle for Eisenberg, Filippelli Petitioners Eisenberg and for Real Parties in Interest and Appellants. O’Connor,
Thomas M. Delventhal, Burk E. City Attorney, City Deputy and Michael Hallinan for Defendants and Attorney, Appellants.
No appearance Respondents. Evelle General, Winkler, J. Jack R. Chief Assistant Younger, Attorney General, O’Brien, General, Edward P. Assistant Attorney Attorney Runde, General, Deraid E. and John W. Granberg Deputy Attorneys Real in Interest and for Plaintiff and Party Respondent. Hanson, Solomon, S. H. Donald M. Sheldon
Roger George Taylor, Portman, Sorenson, Public Defender Keith C. District (Santa Clara), J. (San Mateo), District Attorney Douglas Gray, Attorney, Deputy Rosenthal, Elmore, Manella, Herbert M. H. Garrett Irell & Robert L. Winslow and Peter M. Amici Hoffman as .Curiae.
Opinion
MOSK, J. In Johnsonv. P.2d 170.6, we held that Code of Civil Procedure section which 5], provides for the of trial on motion an judges supported by affidavit of does not violate the doctrine of the prejudice, separation or of the In these powers impair independence judiciaiy. we are called
consolidated to reconsider decision proceedings upon of the with statute two light experience during intervening and as here in a criminal We have decades context. undertaken applied review, and conclude that statute should constitutionality be reaffirmed. of Civil 170.6 in substance that
Code Procedure section any provides or criminal make an oral or or to a civil action attorney may party an motion to affidavit written assigned judge, disqualify supported such or the that the or interest prejudiced against that the thereof so affiant cannot believes he cannot have an impartial there are on trial. As hereinafter strict limits appears, timing motions; form, of such if the number but motion and in is timely proper must recuse himself without further and the case must be proof to another reassigned judge.
The facts these not in On October proceedings dispute. a criminal Tina with an complaint act of charging Peoples soliciting Code, (Pen. subd. came before (b)) Ollie prostitution Judge Marie-Victoire of the San Francisco Court. Defense counsel Municipal filed a motion to dismiss the and asked for a date. charge, hearing Judge Marie-Victoire set the to be matter heard in her own department November 1975. At that District Edward point Deputy Attorney Rudloff, asked to be sworn made an oral representing People, motion to Marie-Victoire to Code of Civil disqualify Judge pursuant Procedure 170.6.1The declined to herself on the matter—i.e., the motion to dismiss the ground pending issues same of law and fact that she had charge—presented *6 in similar other defendants a week adjudicated prosecutions against earlier. Marie-Victoire offered Rudloff the to chal- Judge opportunity Proc., for her cause Civ. but he (Code subd. declined. 5), lenge On the same criminal Diana day complaints charging Solberg, Black, Constance and Javette Rollins with an act of soliciting prostitution each, also came before Marie-Victoire. In defense counsel moved Judge dismiss; the to set the matter in her own hearing department 12; Rudloff renewed to and November his motion summarily disqualify; denied it. judge summarily 1The words of the oral motion were: “Pursuant 170.6 of the California Section Code Procedure, feel we of Civil don’t can a fair in cases of trial these kinds in People get this court and ask that this Judge challenged peremptorily.” Rudloff filed a formal 10)
On the written (October following day under 170.6 to Marie-Victoire motion section disqualify Judge motion was four matters. The supported hearing pending foregoing in the form his under declaration substantially penalty perjury by Marie-Victoire denied written statute.2 by Judge prescribed had the oral motions. the same as she motion on rejected ground Francisco The filed the San People promptly petition a writ of Court for mandate or Marie- Judge prohibition compel Victoire to herself from further in these actions.3 disqualify proceedings The matter was Claude D. two of Perasso. assigned Judge Thereupon actions, the four defendants in the criminal Diana underlying Solberg and Tina as real in the in interest writ Peoples, parties appearing filed a motion under 170.6 to written section proceeding, disqualify Perasso. The motion was a declaration their Judge supported by counsel under similar to that filed penalty perjury previously Perasso (fn. denied ante). Marie-Victoire People against Judge Judge discussed, the motion on two hereinafter and with grounds proceeded the hearing. and court offered to Marie-Victoire
Counsel for Judge municipal alia, Marie- motions to inter that the Judge disqualify People’s prove, motivated were “blanket Victoire in the criminal actions challenges” of law. Perasso with her discontent Judge rulings prior prosecutorial statute, and under denied the offer immaterial subpoenas quashed and staff for his issued district purpose against Marie-Victoire such Counsel municipal Judge proof. eliciting motions, the timeliness of the then declined to court People’s question written that the motions—at least Perasso determined and Judge with the on October form 10—complied requirements presented Perasso 170.6. rendered judgment ordering Accordingly, Judge Marie-Victoire from issue that a writ restraining Judge peremptory in the four other than further actions taking any proceedings question matters for another herself set the before judge. hearing Ollie recited “the Honorable Marie 2The of the declaration charging portion Victoire, *7 motions aforesaid before whom on to dismiss the actions hearings the judge actions, of the so that the interests in the aforesaid plaintiff is prejudiced against' pending, cannot have a before such hearing cannot or believes that he fair and declarant impartial judge.” defendant in Francisco Court was named as an additional 3The San Municipal writ proceeding. and the court from Marie-Victoire municipal Judge appealed as and the is now before us v. Court People Municipal judgment, appeal addition, S.F. 23469. In Diana and Tina filed Solberg Peoples (Solberg), for writ of mandate or in the Court prohibition Appeal petition to vacate order their motion to Perasso his Judge denying compel him; v. is now before us as Solberg proceeding Superior disqualify Court, S.F. an alternative writ issued the Court of on by Appeal. with the latter
We begin proceeding. Court
Solberg
Superior
his
the motion
him
Perasso rested
denial of
Judge
disqualify
First,
two
he
reasoned that
grounds.
People’s
hearing
petition
writ he
for a
was
“in an
and hence was
acting
capacity,”
appellate
from
under
lacks merit.
section 170.6. The
exempt
disqualification
point
While it can be
said
common
that the writ
parlance
proceeding
had the effect of
order
brought by
People
“reviewing”
challenged
Marie-Victoire,
was
matter
Judge
nevertheless a
within
proceeding
VI,
of the
Const.,
10;
court.
art.
original jurisdiction
(Cal.
§
superior
Proc.,
Civ.
Code
It
is therefore within the
§§
terms
express
170.6,
of section
which declares that after
no
superior
court
shall
civil or
action
criminal
or
judge
“any
try
special proceeding
kind or character” (subd.
In view of this
(1)).
it is
any
statutory language
irrelevant that the
Court and Courts of
as the
Supreme
Appeal,
Attorney
out,
General
have concurrent
in such matters. The
points
jurisdiction
General also
seeks
trial of
Attorney
Perasso’s
the writ
analogize Judge
to the
of a
to the
proceeding
assignment
judge
appellate department
fails,
court.4 But the
as the
superior
analogy
department
appellate
has a limited
over certain
jurisdiction
municipal
justice
appeals
Const.,
VI,
11;
Proc.,
courts
art.
(Cal.
Code Civ.
subd.
§
only.
§
(g);
see
Whittaker
362-365
generally
710,
190 outcome; interest the in the as the real in litigant designated party interest (See is the true adverse Matter De (1905) Lucca Cal. party. of 110, 113 P. 853].) He is therefore to entitled the oppose application [79 1107; Court, Proc., the writ Civ. of (Code 56(a)(2)), Cal. Rules rule § warranted, if to file the a motion in writ to the proceeding disqualify 170.6.5 to section assigned judge pursuant formal timeliness or the to either the
No is raised as question real in filed the the affidavit of of by parties disqualification sufficiency that the statute is interest; we have concluded and as hereinafter appears, no but to had It follows that Perasso constitutional. jurisdiction Judge Proc., 170.6, (3); subd. § Civ. (Code and recuse himself. motion grant 12 Cal.3d (1974) v. on Judicial see Commission Qualifications McCartney A writ mandate will 268].) 531-532 P.2d Cal.Rptr. [116 motion for to vacate his order therefore lie to him denying compel disqualification.
All in these orders made thereafter Perasso by Judge proceedings void, likewise issuance of a including judgment directing peremptory in the writ Marie-Victoire to herself commanding Judge disqualify Nevertheless, from criminal matters. issues by appeal presented remand, will arise on therefore doubtless proceed judgment to their merits. address
People Municipal (Solberg) and the Marie-Victoire municipal Appellants Judge denied the court do not on the which the former theoiy rely upon her, waive deemed and it is therefore motion People’s disqualify 170.6 is Instead, contend that section d.6 appellants principally 5The General also Perasso’s ground seeks to uphold Judge ruling Attorney 170.6, Section involved issues law. writ assertedly only proceeding pending however, (italics fact" “which involves contested issue law or matter any applies added; (1)). subd. 6The wás untenable in event. Marie-Victoire Judge People’s any rejected theory issues, me on these same are not you motion on the that “once have you accepted ground However, me at which People entitled to under Í70.6.” proceedings disqualify to move for her Marie-Victoire—by assertedly Judge failing “accepted” 170.6, (cf. (2)), but a the same subd. prosecution —were not an earlier merely stage Subdivision different defendants. brought different of prostitution charges against group one one action any more than motion “in any making statute bars two successive actions a party may or negative implication, special proceeding”; each, action waiving the later without disqualify move may thus The statute wording appears move in the earlier. to so right failing (See collateral People on the doctrine of estoppel. premised (cid:127)foreclose any argument 622].) 527 P.2d Cal.Rptr. 691-698 Taylor *9 191 it the of because violates- doctrine of powers unconstitutional separation Const., Ill, the art. and of the 3)§ (Cal. impairs independence judiciary *****7 VI, curiae,* As amici the art. contention is that {Id., 1). by amplified section 170.6 does not the state the because to require for of the in reasons his statute effect allegation delegates prejudice, of the executive branch and to the the representatives private litigants the define of trial grounds legislative power legal disqualification and because section 170.6 neither of such judges; requires proof of nor truth, of its review the statute allegation prejudice permits in effect to the same the to determine delegates persons judicial power whether such a in in fact exists the case in which it is ground particular invoked. 693, 695-696, Johnson v. Court
In we (1958) supra, these identical in the of rejected arguments constitutionality sustaining statute. We have the reviewed the decision in the of the light points in the we raised and are of convinced Chief present appeal, opinion therein, understood, Justice Gibson sound law. For the remains properly bar, however, of bench and we undertake to restate his guidance and it relate to the now concerns us.8 reasoning urged upon At it the outset seems reiterate the of basic necessary principle in the decision Johnson: of doctrine government underlying of enshrined in the and Constitution separation powers, although liberties, fundamental to the of our civil “does not mean preservation that the three of our are in not government departments many respects v. State Bar 442 208 Cal. mutually (1929) dependent.” {Brydonjack P. 66 A.L.R. As 1507].) this court more than [281 explained half “the constitutional and of the century ago, jurisdiction powers court VI defined in article of the can in nowise superior [as Constitution] views are 22of trial 7appellants’ generally by supported group judges appearing however, (hereinafter curiae amici called “amici Their not judges”). positions, limit their attack the use appellants by People identical: 170.6, in while amici provided broaden issue to include the procedure judges use of statute both sides in criminal action. distinction at by This debated some curiae, counsel; other amici and e.g., associations defense but it length prosecutors herein, immaterial view the we becomes in conclusion reach do not further Bar, address it. of the State as amicus Finally, sponsor question, legislation appears and, statute curiae of the support generally, People. 8Johnson has been cited with sister decisions of our states approval upholding (Channel of statutes similar to
constitutionality section 170.6. Inc. v. essentially Flying, 575; (Alaska 1969) Bernhardt 451 P.2d State v. Fourth Judicial Dist. District 658-660].) 145 P.2d law For a overview of scholarly Mont. see or Bias—Common Law practice Evolution, this-topic, Disqualification and the Judges Prejudice Status, 311-410.) Current 48 Ore.L.Rev. Oregon Experience While this is lessened or limited
be trenched legislature. upon, it not follow that the true does undoubtedly legislative department with no relation to state regulative power government possesses *10 courts of the state or to the method and of the jurisdiction superior which the constitutional of these in and means of powers procedure it been decided this be On the has courts exercised. contrary, by that ‘the which in a and consistent line of cases court by procedure long the is to be exercised be the of said courts by may prescribed jurisdiction thereof will be unless and that the statutory regulation upheld legislature, found the constitution- such should be to substantially impair regulations ” defeat their exercise.’ (Sacramento al of the courts or powers practically 414, 432 P. To 687].) 196 Cal. etc. D. Dist. the the matter and more may affirmatively Legislature simply, put of the courts all reasonable the exercise of the jurisdiction regulate means. Johnson, we held the
Applying foregoing principle the of trial is an that the judicial system judges aspect disqualification which is to reasonable may legislative regulation; prejudice subject it of such and that be declared a ground disqualification; properly could have said it is virtually impossible—for “wholly unnecessary”—we “the conceivable factors which to list many Legislature attempt a to be Cal.2d at (50 696.)9 cause might prejudiced.” p.
We then held that the method for Legislature adopted We its was also reasonable. first stressed achieving purpose impor- tance of as well as the fact of maintaining appearance impartiality courts, observed, we must business judicial system: even the conducted in such a manner as will avoid “suspicion inherent at we 697.) unfairness.” {Id., Secondly, recognized well mind such as as as a state of prejudice, difficulty proving that he a who asserts natural reluctance of courts to declare biased judge that “In order to insure we reasoned is not. From these premises which arise and avoid the confidence in the might judiciary suspicion where it in a case that the is biased from the belief of litigant that his a court for the be difficult or litigant persuade may impossible that a conclude could belief is reasonably justified, Legislature of a an to obtain the should have opportunity for disqualification statute providing 9At this referred to preexisting point Proc., subd. The word (Code “bias or Civ. prejudice.” upon proof judges in this as it has companion in section 170.6 is to be the same given meaning “prejudice” the latter. in the substantial of case law construing applying statute and body statement, a sworn it without establish upon prejudice, being required fact to satisfaction of {Ibid.) judicial body.” Much of about confusion the rationale of Johnson would be if the cleared were read: sentence we held the up last-quoted carefully affidavit to be reasonable in these not it circumstances because procedure establishes “as a fact” but because it “the of a belief prejudice expresses that he have cannot a fair trial before the litigant” assigned judge.
Indeed, section 170.6 such belief as explicitly recognizes sufficient subdivision (1) ground disqualification: although speaks *11 of affidavit that the in “is generally establishing judge question subdivision that will be deemed prejudiced,” explains prejudice “established” this if the or he his swears purpose “cannot or he believes that cannot a fair have and trial or impartial such before (italics added). hearing judge”
It a is thus of Johnson to that the decision is based misreading charge on the “fiction” that the affidavit the is proves actually prejudiced, or that there created an “irrebuttable of actual presumption” true, from the the mere of such affidavit. Neither is prejudice filing actual reason that is not a the statute. prejudice invoking prerequisite As we “It in is well that Code recently emphasized, recognized enacting of Civil Procedure section 170.6 the Legislature guaranteed litigants an a in The is ‘automatic’ extraordinary right judge. right the a sufficient, sense that faith in is of alone good prejudice proof belief facts actual not in showing (Italics prejudice being required.” original.) on Commission Judicial {McCartney Qualifications supra, Cal.3d 531.) The affidavit is thus formal of means simply belief; such in and order to confidence in the expressing preserve public of courts, the the belief will alone impartiality justify disqualification.10 170.6, the of amici make 10Although arguing general against validity section judges this with commendable candor and “It is point their brief: often stated persuasiveness that it is not but the that only appearance of should disqualify judge. prejudice fact This is a rule that to the reason of the Constitution. . . . is not fact of appeals [I]t would rather prejudice of the role but impair legitimacy judiciary’s probable i.e., few, fact of The truth if ultimate prejudice, appearance prejudice. any, ‘facts’ of human existence are established which to that certitude point complete eliminates all A fact doubt. as difficult of ascertainment plausible any person’s seldom, ever, if is so that reasonable not ‘prejudice’ proven persons might completely still And the mere faith belief a fact is true be disagree. allegation may good sufficient to cause reasonable Since the of the role is essentially doubt. Court’s legitimacy their whose secure confidence the courts must remain if perception people, maintained, be or a are to it follows that or even facts powers merely probable alleged in such be faith belief facts sufficient to good may disqualify judge.” contended, however, It that Johnson is is earnestly distinguishable 170.6, of section and because it addressed facial that the only validity of the courts with the actual of the statute experience operation during two decades reveals such abuses past widespread persistent thereof as to warrant reconsideration of the and a question holding now section 170.6 is unconstitutional as The abuses which are applied. said to have occurred divided into two may principal categories.
First, 170.6 has been invoked for the assertedly purpose i.e., of on case “judge-shopping,” removing assigned judge other than a belief that he is within the grounds personally prejudiced of the statute. It is conceded that a is not entitled to meaning litigant it insist on a of his choice. But that removal of a argued unauthorized reduces the grounds artificially pool qualified judges case, an available to hear element of lawlessness into the injects in each case to operates abridge neutrality process, judiciaiy. invoked, the unauthorized most it is
Among grounds commonly *12 is the of a because of his views on the law charged, judge disqualification or on the exercise of Such a discretion.11 judicial disqualification has the in eifect assertedly chilling judicial creativity discouraging law, new and rules of violates the of the settled fashioning spirit principle do not constitute actual bias removal prior legal rulings warranting 257, of a v. 51 Cal.2d (Calhoun cause. Court (1958) Superior P.2d Cal.2d 648]; 260-261 25 Superior Kreling [331 P.2d and 734], 310-312 cases cited.) [153 filed, motions also it is when the or
Disqualification alleged, believes is not his counsel assigned judge professionally, emotionally, case, over the or or has preside particular physically competent traits such undesirable or exhibited personality injudiciousness contend that the case at bar is an 2 of this abuse. On October 11AppelIants example 8, 1975, and Marie-Victoire dismissed a number of cases after Judge prostitution ruling that the defendants therein were the victims of law enforcement discriminatory practices based on the classification of sex because in each the female instance suspect only customer, above, and not her male was arrested and As on noted prostitute, prosecuted. October 9 the individual against real in interest herein came prostitution charges parties before Marie-Victoire for the Judge date to hear their motions purpose setting The dismiss on the same moved to her under section 170.6 ground. People disqualify because of a to have a fair trial cases in allegedly inability “in of these kinds perceived (fn. ante). this court” assert the circumstances Appellants wording motion show it was based with on the dissatisfaction primarily Judge People’s Marie-Victoire’s on law enforcement. prior legal ruling discriminatory to a which threatens to the conduct of the irascibility degree impair Not are these considerations under proceedings. only improper statute, but it is claimed that such a decision tends too to turn on easily as to whether the were wise or litigant’s opinion judge’s prior rulings correct; cases, and in serious of these any grounds on the constitutional of the Commission on assertedly impinges powers censure, remove, Judicial Performance to or retire a appropriate Const., VI, circumstances. art. (Cal.
Second, section 170.6 is said to have been invoked variety tactical In a court a purely who files a advantages. single-judge litigant motion to obtains a while an automatically significant delay outside is into the case. Some brought ensues even delay inevitably courts; and in courts, multi-branch multi-judge disqualification may also result in a desired in the as well as the change date of trial. In place addition, in courts with as a specialized departments—such psychiatric statute juvenile has been department—the used to remove the judge in that regularly sitting department from the hope benefiting substitution of a less it experienced the statute judge. Finally, charged has been invoked to intimidate and in certain cases even judges generally to influence the outcome of election Maine (see, campaigns e.g., Court (1968) 386-387 Cal.Rptr. P.2d 372]).
We need not this recital further lengthen by recounting examples 170.6; asserted abuse of section are doubtless known to the bench they For bar. assume are true. We do not present purposes charges *13 condone such nor do we underestimate their effect on the practices, courts, of our trial Nevertheless for a number of operation reasons we are not that we should reconsider Johnson on this persuaded and hold the statute invalid as ground applied.12 with,
To it is inaccurate to assert that we did not know of begin these abuses when we decided Johnson. It is true that section 170.6 had then been in effect for somewhat less than a fn. (See But the year. post.) statutes of our sister states which it was modelled had been upon for and we were well aware of the operational many years, experience thereunder. cases collected at (See 697-698 of 50 For Cal.2d.) pp. 12It that we follows shall a motion filed amici a referee deny to for judges appoint
the of evidence of the abuses of section 170.6 set forth We purpose taking hereinabove. Proc., 909; (see do not reach the of the of such a motion Code Civ. question propriety Court, 23(b)), Cal. Rules rule of hold rather that the evidence is but not material to the of this disposition appeal. relied the case of of on which we was one the decisions leading
example,
1074, A.L.R.
which
1173],.
Secondly, proposition For abuses condemned example, by amici'judges self-limiting. an court who must realize lawyer practices single-judge one 170.6 in or more risks use cases antagonizing improper whom he must in all the other cases before inevitably veiy appear It he will have in that court. is true that individual has and an litigant concern, him but not share his self-interest should may lawyer’s give *14 incentive to dissuade his client from an ample demanding unjustified court this but not In risk is attenuated disqualification. multi-judge and it is in both real settings compounded by possibility negligible; that who enters the case even less the substitute bemay satisfactory judge whom In that to or his client than the lawyer they disqualify. event is dilemma—short of there no undertaking escape often difficult of actual bias under task attempting prove 170—because subdivision section 170.6 declares “under no (3) circumstances” can a or his make more than one motion party attorney thereto in each case. pursuant course, latter
The is one of several provision, statutory which we characterized in Johnson to minimize as “designed safeguards such abuses.” Cal.2d at The others are that the section (50 697.) (ibid.) p. that the his show faith
“requires good declaring oath that the and under is prejudiced, timely provides making trial, continuances, of the before limited challenge strictly granting and as as for reassignment possible.” promptly do not
We share amici of the view effectiveness of judges’ pessimistic As to these the affidavit we that some safeguards. requirement, recognize of false minimal unavoidable degree swearing may any contempo- But this does not mean the is a system. hollow rary judicial requirement or that substantial numbers of members of the bar are so formality, of their and honor neglectful personal professional they repeatedly themselves an uncertain perjure merely gain advantage litigation.
We therefore reaffirm the belief we in Johnson that “We expressed cannot assume that there will be a wholesale of false properly making statements under oath” Cal.2d at (50 697). p. we
Next fact that in the since Johnson emphasize important years the courts this state been enforce have vigilant statutory and restrictions number motions Thus timing permitted. of the too cite
decisions Courts of numerous to have insisted on Appeal strict with the that if the (subd. (2)) compliance requirement assigned known trial the ten before motion must be made “at least days before five that date.” Council Northern Cal. (See, days e.g., Hospital Court 338-340 247].) Cal.App.3d Superior Cal.Rptr. [106 to “one The limitation of the statute motion for each side” (subd. (3)), concede, amici “reduces of the quantity judges quality injury the section.” We enunciated a test for this caused restriction invoking 700), in Johnson Cal.2d at it in criminal context in (50 applied p. 353-356
Pappa Cal.Rptr. case we
353 P.2d
In the same
construed
limitation of one
311].
“in
motion
one
to bar a second motion
(subd. (3))
action”
made on
any
(Id.,
retrial.
at
And
construed the
requirement
be filed
motion
before “trial
cause has ... commenced” (subd. (2))
for the first time in
motion
matters which
prohibit making
post-trial
of the main
such as
“continuation”
essentially
proceeding,
hearings
*15
199 law, a cation.14 Under federal trial must himself when judge an affidavit he has a files bias or alleging prejudice personal against addition, however, the affiant. U.S.C. In statute (28 the § expressly “The shall decrees that affidavit state the facts and the the reasons for exists,” belief bias or and the cases this statement prejudice require time, to be detailed and as to and circumstances. specific persons, place, has The statute been to mean consistently interpreted although asserted, assume the of the must truth facts he nevertheless has to determine whether sufficient constitute right they legally kind or bias if his he finds them degree warranting disqualification; insufficient, he decline to himself. v. recuse United States may {Berger 481, 22 255 U.S. L.Ed. 41 (1921) S.Ct. see et 230]; generally [65 Wright al., 3551, 13 Federal Practice and Procedure (1975) 373-382.)15 pp. 170.6, would us to rewrite section this
Again suggestion require time into subdivision thereof a (2) by reading requirement affidavit state facts and circumstances which rise to the specific gave affiant’s belief Such a construction would also be inconsis prejudice.
tent with subdivision which directs that all (5), affidavits filed under statute be in the form which it then sets forth.16 “substantially”
The form facts, makes no for detailed statement of provision and it is reasonable to infer the did intend not Legislature impose such a condition.
Moreover, the would the details proposal compel litigant spread of his on the (See, record. charges judicial public prejudice Berger e.g., 22, United States 255 U.S. (1921) 481, 28-29 L.Ed. 483-484].) supra, [65 We see net be no benefit to this additional Because gained by step. would not be to rule on the truth of such permitted falsity would stand no matter they how divorced from
allegations, unchallenged be. Not could this to the reality they might only present public distorted but would picture impartiality, as true even he have compelled accept charges though may 14A similar made suggestion was concurring dissenting justice Fraijo (1973) 909], 34 228-231 but Cal.App.3d Cal.Rptr. majority id., (see 226). therein it at to adopt impliedly declined Note, (See, 15The federal has not without criticism. practice gone e.g., Disqualification 57 a Federal District Bias—The Standard Under Section Judge Note, Minn.L.Rev. 754 et Bias in the Federal Disqualification Judges seq.; Courts 79 Harv.L.Rev. 1439 et seq.) case, an the form ante. 16For use of in this see footnote example are false.17 And even the limited judicial *17 knowledge they personal this could in review by produce sharp disputes contemplated suggestion court over whether behavior is or is not sufficient particular judicial open a to demonstrate bias. We can believe the would be only consequences in diminution for needless friction public respect judicial system, them, between and the who before and further judges attorneys appear cases to trial. delays bringing
Each of these defects is also in the alternative present proposal amici which is to judges, adopt Oregon practice judicial The statute a to recuse himself disqualification.18 Oregon requires of an affidavit of the affidavit need not include upon filing prejudice; bias, statement facts rise to belief in but it must giving include statement affiant that the motion is “made in faith by good and not for the Rev. Stat. In State v. (Ore. 14.260.) delay.” purposes 252 Weiss 250 Ore. P.2d 357], Oregon Supreme construed the latter whether requirement permit question the motion was in fact made in faith. The then burden shifted to good evidence, otherwise, the affiant “come forward with some hearsay from which a reasonable could conclude that person anyone possessed such evidence the trial might reasonably question judge’s impartiality a matter.” at {Id., 360.) p.
To
this
would
different
somewhat
adopt
interpretation
compel
revision of section 170.6.
our statute does not call for a
Although
faith,
of the affiant’s
we have
held
specific allegation
good
repeatedly
that the motion nevertheless
belief in the
“requires
good
judge’s
faith
on the
of the individual
or counsel . . . .”
(Italics
prejudice
part
party
v. Commission on Judicial
original.) {McCartney
Qualifications
fn. 13.)
To so hold does not add
supra,
statute,
to the
because
in the
is
anything
requirement
already implicit
the motion under oath: “the
of a
necessity
making
objective
verification is to insure
faith in the averments of a
{ibid.).
good
party”
of this statute
faith is
Conversely,
purposes
good
sufficiently
hereinabove,
established
the act of verification itself: as noted
in Johnson that section 170.6
that the
or his
explained
“requires
show
under oath that
good
declaring
faith
added; 50 Cal.2d at
To
the affiant to
(italics
697).
prejudiced”
p.
oblige
(See,
17The federal
stated.
courts have so
Salesmen’s U. Loc.
e.g., Hodgson
Liquor
(2d
1971)
No. 2
State
Y.
Cir.
444 F.2d
of N.
in the
18We are aware of no other
which has
the Oregon
jurisdiction
adopted
practice
since
devised it.
years
Oregon
of fact would
his
faith as a matter
behind his oath
good
go
prove
scheme.
a substantial
from the
therefore constitute
statutoiy
departure
Furthermore,
it
to us that in
showing
good
appears
practice
under
would not be
faith
Oregon system
significantly
required
different from the
under the
allegations
prejudice necessary
specific
an affiant
he acted on evidence
federal
show
desiring
procedure:
which a
the trial
person “might reasonably question
judge’s impartiality”
Weiss,
at
360 of 430
would
be led to
P.2d)
supra,
naturally
{State
*18
“state the facts and the reasons for
belief that bias or prejudice
[his]
exists”
U.S.C.
State ex rel. Strain v. Foster
144).
(28
(See,
e.g.,
course,
547,
so,
It
next contended that Johnson is
because
is
distinguishable
170.6
and that in a
the
of section
in civil
constitutionality
only
setting,20
the statute should be declared invalid
because
criminal context
primarily
in the nature of the
and their counsel.
of an asserted difference
parties
criminal
the
and its
The
is that in all
actions
attorney
argument
plaintiff
same, i.e.,
remain the
the
of the State of California represented
People
case,
the district
the defendant
is different in each
but in
attorney;
counsel,
instances is
the same
the
defender.21
most
represented by
public
addition,
19In
the
seems
result in substantial
Oregon
particularly likely
practice
The
in Weiss
the
the issue of
court
fashioned
delays.
following procedure
litigating
faith”: the
first denies the motion of
then
“good
judge
disqualification;
moving party
mandate;
to a
court for an alternative writ of
in his return to the
applies
alternative writ
motion;
higher
faith in
judge challenges
moving party’s good
making
to a disinterested
in the nature of a
the matter is referred
judge
proceedings
and his
at the conclusion of the
the latter files
hearing
transcript
referee’s hearing;
recommendations;
court
which the writ
and on this record the
before
findings
(430 P.2d at
then determines the ultimate issue of
faith.
good
proceeding
pending
p.
entailed in this
can be
from
gleaned
history
Some idea of the delays
procedure
the date on which the motion to
The
does not disclose
the Weiss case itself.
opinion
filed,
19, 1967, the issue of
faith was ordered submitted
but on July
good
was
disqualify
to a referee.
and filed his
with the
The latter held a
report
Oregon Supreme
hearing
21, 1967,
December
to set aside
moved on
Court. The defendant
judge apparently
1968,
14,
however,
the court issued
It was not until June
referee’s report.
The trial was held in
himself.
abeyance
writ directing
disqualify
peremptory
(See
(1968)
Upon analysis kind Johnson, but from the and that only degree arguments rejected the difference does not warrant a with, result. To we do contrary begin not believe the of abuse of section 170.6 discussed self-limiting aspects hereinabove are in the criminal context. A district inoperative or a defender must realize that his tends public practice court, *19 concentrated in a and that if he or his file particular deputies unwarranted “blanket a the effect challenges” against particular judge well be to court, of the may one of antagonize remaining judges whom will be to their unseated and the assigned replace colleague, who will Moreover, make that presiding judge, assignment. delay attendant on such a substitution should not commend itself to whose and self-interest prosecutor duty urge prompt disposition cases, or to defense counsel whose client pending has not been any released on bail and for that or other reasons benefits from trial speedy requirements.
More
the issue of “blanket
is not new
importantly,
to this
challenges”
court. In
v. Commission on Judicial
McCartney
Qualifications (1974)
512,
we reviewed a recommendation that a
supra,
retained. For
in the case at bar
example,
defendants
Solberg
Peoples
represented
counsel.
by private
22Even when this radical
ensues the case is
consequence
from
distinguishable
v.
People
(1970)
Tenorio
policy ‘hard dissatisfaction with defenders’ [Judge McCartney’s] public rather than a faith belief in as a district line’ good performance deleted.) (Italics prejudice.”
In a footnote at this we recited within a few months (fn. 13) point after his term of office the defender began Judge McCartney public his file in all directed affidavits deputies writing prejudice criminal to the thereafter. We were unable assigned proceedings record, determine exact reason for this from the finding policy the inferences that defenders were strong equally deputy public either remove from the criminal bench seeking Judge McCartney were concerned that he would be to the legitimately partial prosecution take or would an inordinate time to their cases. We felt tiy compelled, nevertheless, to the “blanket” these We nature of filings. speak 170.6 the affiant hold under section must explained required faith belief in “in each case” which he good prejudice particular statute, invokes concluded “The ‘blanket’ nature this directive defender contravened written issued by public arguably *20 the from each withdrawing by deputy requirement good faith or whether not before individual decision McCartney]. appear [Judge the it another office that To predetermined prejudice way, policy phrase case without to the facts in each be claimed each would regard deputy office, each the the handled thereby transforming representations claims of (Ibid.) affidavit into bad faith prejudice.” doubt that in we is thus no
There McCartney strongly disapproved and of “blanket we reaffirm that challenges,” position practice it is manifest we do not believe But also from that herein. McCartney vitiates the statute: our concluded (at despite disapproval practice “even was and evidence clear 538), assuming arguendo i.e., that the motions were “blanket made challenges” convincing,” could not unauthorized grounds, Judge McCartney’s practice justify foresaw that because “the Legislature clearly injudicious response 204 would be to such abuses but
peremptory challenge procedure[23] open intended affidavits be honored misuse. (See notwithstanding Johnson v. short, Court 697 . (1958) . . In .)” Superior of “blanket does not possibility filing challenges” distinguish Johnson, criminal and the of that present proceeding reasoning decision is statute, to the current version of the equally applicable both civil and criminal cases. (Accord, governing Journey 47 411 897].) Cal.App.3d Cal.Rptr. We conclude that to the extent abuses persist not, of section utilization 170.6 do in our they judgment, “substantially or defeat” the exercise of the constitutional impair” “practically jurisdic tion of Rather, the trial courts. it to view them as a may helpful to be relatively efficient and discreet inconsequential price paid.for in section 170.6. The statute procedure thus remains a provided reasonable—and hence valid—accommodation of the inter competing bench, bar, ests of on the public subject judicial disqualification. We do not doubt that should future to this sensitive balance adjustments become desirable, will act necessary with due Legislature regard for the of all concerned. rights
The motion to a referee and take evidence is denied. In S.F. appoint 23449, let a writ of mandate issue as In S.F. peremptory prayed. is dismissed. All shall bear their own appeal costs. parties *
Clark, J., Richardson, J., Sullivan, J.,* and concurred. J.,† Wright, Although I TOBRINER, J., C. Acting Concurring Dissenting. concur in the conclusion that Perasso was majority’s Judge properly in this case and thus with the disqualified agree majority’s disposition matters, I these cannot in the further conclusion that join majority’s 23Our characterization of section 170.6 as “the was peremptory challenge procedure” not a sub silentio of Austin v. Lambert 73 overruling Cal.2d P.2d *21 [77 849], statute, which A.L.R. the decision struck the down to the current predecessor but convenient, a merely abbreviated—though section imprecise—way distinguishing 170.6 from section the for cause. We procedure disqualifying judges recognize (see, similar is not uncommon the usage ante), bench and bar fn. and among e.g., we attribute no sinister to it. significance *Retired Associate Justice of the Court under the Supreme sitting assignment by Chairman of the Judicial Council. Chief Justice of California under the sitting, †Retired assignment by Acting Cháirman of the Judicial Council.
205 in the section 170.6 erred Marie-Victoire disqualification rejecting Judge court. in the district filed the municipal motion attorney deputy under section 170.6 view, “blanket” the In use challenges my or his because of his prior rulings judicial philosophy judge the undermines of law judicial on principle seriously questions the if not and distorts reality, appearance, independence I not believe that the do Unlike judiciary majority, impartiality. 170.6 such an abuse of disqualification
helpless prevent one—in which the as the a case—such present procedure, particularly on the face motion basis of clearly appears improper disqualification view, of section In both the of the record. my language purpose refusal to recuse herself the instant case. 170.6 the trial court’s support 170.6, “No . .. in relevant (1), Section subdivision judge provides part: . . . when it criminal action . nor hear matter shall civil or . . any try any that such or court shall be established as hereinafter judge provided or or the interest of commissioner is against any attorney prejudiced party (Italics or in such action or any party attorney appearing proceeding.” that the affidavit Section 170.6 subdivision on to (2) added.) goes provide or must file to about the which a attorney bring disqualification party “is state that under section 170.6 should judge affirmatively or or ... so such such attorney party prejudiced against any party trial he have a fair and cannot or believes that cannot impartial attorney added.) before such (Italics or judge.” hearing or a or
Thus, party’s posits judge’s prejudice, statutory language for a as the essential basis in the belief prejudice, judge’s attorney’s motion. That a or believes section 170.6 attorney party not invoke the to rule his interests does that a is likely against section; rather, or must have a faith belief “good party Commission (Italics added.) (McCartney [judge’s] prejudice.” 526 Judicial Qualifications Cal.Rptr. [116 P.2d 268].) California cases establish doubt
Past beyond judge’s judicial or of law do not afford a basis for claim prior rulings proper philosophy “ The words “bias” and ... refer to the mental “prejudice” prejudice. towards a to the
attitude litigation, disposition,of matter views that he entertain not to subject any may regarding ” 372, 380 P. involved.’ Cal.App. {Evans more than a half As this court 662].) century “[R]ulings ago: emphasized *22 continuous, even when numerous and form no against litigant, ground for a of bias or v. Occidental Insurance (McEwen charge prejudice.” Life Co. 172 Cal. P. 86].)
The record in the instant case that the demonstrates disqualification motion at trial issue rested “the views directly judge] upon [the involved,” rather than matter regarding subject any entertain[ed] claim of or ill will. before the matter personal enmity Shortly present Marie-Victoire, sustained, came before Marie-Victoire had Judge Judge criminal constitutional to the challenge separate proceedings, to enforce the solicitation laws in used San procedures prostitution Francisco. When the instant to solicitation of an charges—also pertaining Marie-Victoire, act of before prostitution—came Judge deputy district stated in court that his motion was open disqualification fact that “the don’t feel that we can a fair premised People get trial in cases these kinds in this court.” This comment (Italics added.) of demonstrates that the motion emanated from the Peo- disqualification with the merits of Marie-Victoire’s views on disagreement ple’s Judge issue to the enforcement of relating legal discriminatory prostitution laws; the statement establishes that the district additionally attorney’s office had a “blanket” 170.6 adopted policy using attempt Marie-Victoire in all such Under cases. disqualify Judge prostitution circumstances, these I believe Marie-Victoire concluded Judge properly the motion did not from a in her faith belief generate good she determined that section 170.6 did not “prejudice”; correctly compel her disqualification. do not that a with
Although majority suggest disagreement party’s constitute a law basis a claim of judge’s rulings prejudice, of “blanket conceding inappropriateness practice challenges” under section 170.6 (see ante), majority apparently despair confine section 170.6 to its without any proper application attempt the section. The reason majority undermining principal purpose into whether or not have inquiry allegations prejudice been made in faith would violate the section 170.6 language good subdivision which that when a motion is (3), provides disqualification filed, and an affidavit and without “duly presented” timely “thereupon further act or another must be to the case. A any proof’ assigned motion, however, is not within the “duly presented” of the statute when it on the face of record that the meaning appears motion does not rest on belief but on a prejudice, merely with the disagreement judge’s prior legal rulings. *23 course,
Ordinarily, litigants not grounds need state the for their “blanket challenged judge prejudiced. belief that When a is challenge” however, policy requirement has been adopted, of a in “good prejudice” obviously faith belief violated. has been We case, our declaring intimated as much in recent that such a McCartney policy challenge” “predetermined prejudice “blanket would be by each without to the case deputy regard claimed facts each handled office, thereby transforming representations in each affidavit (Italics added.) (12 538.)1 of prejudice.” p. into claims Cal.3d at bad faith case, course, the instant deputy explicitly In district challenge” policy confirmed the existence of the “blanket in his in open statement court.
The instant ruling litigant allows a to remove a the bendh despite patently false nature of the claim of prejudice offered. No matter how transparent deception, the majority instruct the trial judge to step aside. I cannot majority’s concur in the conclusion that the judiciary powerless prevent is such an abusive exercise of the disqualificationprocedure.
The petition appellants rehearing of the defendants and for a was Tobriner, J., April denied opinion petition 1977. was of the that the granted. should be 1The that the majority of “blanket” imply under 170.6 was legality challenges decision, however, I read As did
upheld McCartney. not hold that McCartney when a trial with challenged accordance an of “blanket" adopted policy that he must honor the and withdraw. Nor did we hold always challenge that blanket the bounds of We challenge practices beyond inquiry. merely that a stated of blanket “is no practice answer to serious challenges simply petitioner’s from a role departures or his habitual toward properjudicial defendants intemperance court (12 Cal.3d at personnel.”