People v. Superior Court of Orange County

Filed 7/25/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Petitioner,

v. G052932

THE SUPERIOR COURT OF ORANGE (Super. Ct. No. 14ZF0338)

COUNTY,

OPINION

Respondent;

RITO TEJEDA,

Real Party in Interest.

Original proceedings; petition for a writ of mandate/prohibition to

challenge an order of the Superior Court of Orange County, Richard M. King, Judge.

Petition granted.

Tony Rackauckas, District Attorney, Stephan Sauer and Brian F.

Fitzpatrick, Deputy District Attorneys, for Petitioner.

Schonbrun Seplow Harris & Hoffman and Paul L. Hoffman; Erwin

Chemerinsky for Respondent.

Sharon Petrosino, Public Defender, and David Dworakowski, Assistant

Public Defender, for Real Party in Interest.

Nearly 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

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powers or impair the independence of the judiciary.” (Solberg v. Superior Court (1977)

19 Cal.3d 182, 186-187 (Solberg).) It did so after considering “experience with the

statute [in the preceding] decades and as applied . . . in a criminal context.” (Id. at p.

187.) The Solberg court reasoned, “to 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. We do not doubt that should future adjustments to this

sensitive balance become necessary or desirable, the Legislature will act with due regard

for the rights of all concerned.” (Solberg, supra, 19 Cal.3d at p. 204.)

Although we question the wisdom of the Solberg holding in light of the

complexities of modern court administration, we are bound to follow Supreme Court

authority. For reasons we explain anon, we urge the Supreme Court to revisit the issue of

blanket papering to determine whether the impact of an abusive use of Code of Civil

Procedure section 170.6, such as demonstrated in this record, can be viewed as

inconsequential on a trial court in the performance of its duty to administer justice.

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

Orange County (respondent court), however, refused to grant a section 170.6 motion filed

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All further statutory references are to the Code of Civil Procedure, unless

otherwise indicated.

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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 section 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 all purposes and set the matter for a pre-trial

hearing in Judge Goethals’ 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

reconsideration of this order, should they choose to do so.” Notice of entry of the order

was served by mail.

On December 17, 2015, petitioner sought writ relief from this court. (§

170.3, subd. (d).) This court issued an order to show cause on February 11, 2016, and

subsequently set the matter for oral argument.

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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, Superior Court 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

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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) 373 U.S. 83. Judge Goethals ruled that Dekraai’s statements

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should be excluded from evidence, but denied the other two motions. However, after

new evidence was presented by the defense pertaining to the existence of a computerized

system for handling informants, Judge Goethals granted the motion to disqualify the

district attorney’s office on March 12, 2015.

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.” (Emphasis 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

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In two other cases, Judge Goethals found Brady violations and disqualified

one specific deputy district attorney by rulings announced in February and March 2014.

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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 has caused

strain in misdemeanor operations. As a result, the court’s responsibility to ensure the

orderly administration of justice has been severely impacted.”

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.”

(Emphasis omitted.)

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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) 34 Cal.4th 1025, 1031 (Home Ins. Co.); see § 170.6,

subd. (a)(1).) Of course, “actual prejudice is not a prerequisite to invoking the statute.”

(Solberg, supra, 19 Cal.3d at p. 193.) Instead, section 170.6 allows for the

disqualification of judges based upon the mere “‘belief of a litigant’ that he cannot have a

fair trial before the assigned judge.” (Solberg, supra, 19 Cal.3d at p. 193; see § 170.6,

subd. (a)(2).)

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) 200

Cal.App.4th 402, 408.) Within its circumscribed limits, section 170.6 authorizes parties

(or their attorneys), rather than courts, to unilaterally decide whether a judge is

“prejudiced.” (Home Ins. Co., supra, 34 Cal.4th at p. 1032 [section 170.6 permits party

to obtain disqualification of judge for prejudice based solely upon sworn statement

without having to establish prejudice as matter of fact to satisfaction of court].) Courts

must honor procedurally sufficient, timely presented section 170.6 motions. (§ 170.6,

subd. (a)(4) [“If the motion is duly presented, and the affidavit of declaration . . . is duly

filed . . . , thereupon and without any further act or proof, the judge supervising the

master calendar . . . shall assign some other judge . . . to try the cause or hear the

matter”]; Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59.)

The atypical power conferred upon parties (and their attorneys) by section

170.6 is not “an unconstitutional delegation of legislative and judicial powers to litigants

and their attorneys”; nor is it “an unwarranted interference with the powers of the courts.”

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(Johnson v. Superior Court (1958) 50 Cal.2d 693, 696 (Johnson) [affirming facial

constitutionality of § 170.6, which applied only to civil cases at the time].)

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) 139 Cal.App.4th 28, 39; see § 170.3, subd. (d).) Hence, there is no

adequate remedy at law for rejected section 170.6 motions—filing a writ petition is “the

exclusive means of appellate review of an unsuccessful peremptory challenge motion.”

(People v. Hull (1991) 1 Cal.4th 266, 276; see § 1086 [writ of mandate appropriate

“where there is not a plain, speedy, and adequate remedy, in the ordinary course of

law”].) Even assuming petitioner is required to establish irreparable harm in bringing this

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statutory writ petition, such harm is obvious in the context of judicial disqualification.

(§ 170.6, subd. (a)(1) [“A judge . . . shall not try a . . . criminal action . . . of any kind . . .

when it is established as provided in this section that the judge . . . is prejudiced”].) As

explained above, a party can disqualify a judge by executing a sworn statement indicating

a belief that the party cannot have a fair trial before the assigned judge. Section 170.6

would ring hollow if the moving party were required to prove in a writ petition that the

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“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 not 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) 181 Cal.App.4th 382; First Federal Bank of California v. Superior Court (2006)

143 Cal.App.4th 310; Pandazos v. Superior Court (1997) 60 Cal.App.4th 324.) This

suggests that irreparable harm is either presumed or considered to be unnecessary in

section 170.6 writ petitions.

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disqualification motion would actually make a difference in the outcome of the case (an

inherently speculative enterprise) or that the moving party could not successfully move to

disqualify the trial judge for cause under section 170.3 (a showing that would undermine

§ 170.6 by requiring the party to disclose the specific reason for believing the judge was

not fair and impartial and to explain why evidence could not be marshaled to disqualify

the judge for cause).

It has often been stated that courts review an order denying a section 170.6

motion for an abuse of discretion. (E.g., Grant v. Superior Court (2001) 90

Cal.App.4th 518, 523.) This standard of review has meaning in some cases, when there

are factual questions that must be sorted out by trial courts before the motion can be

granted or denied. For instance, section 170.6, subdivision (a)(4), limits “each side” of a

case to one peremptory challenge. It may be unclear in some cases whether “joined

parties (e.g., codefendants) are on the same side.” (Orion Communications, Inc. v.

Superior Court (2014) 226 Cal.App.4th 152, 159.)

But a trial court has no discretion to refrain from following binding

Supreme Court authority. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57

Cal.2d 450, 455-456; People v. Franc (1990) 218 Cal.App.3d 588, 593 [“Although stare

decisis doctrine retains some flexibility, it permits only the California Supreme Court, not

a lower court, to depart from Supreme Court precedent”].) As acknowledged in

respondent court’s order, the paramount legal question in this case is the reach of

Solberg, supra, 19 Cal.3d 182: “As a decision of the state’s highest court, the holding in

Solberg must be followed by all inferior California courts. [Citations.] [¶] But is

Solberg’s holding so broad that it requires all trial courts to grant all timely blanket

challenges regardless of the circumstances?” Our review is de novo with regard to the

question of whether Solberg precludes an inquiry by respondent court into the district

attorney’s use of section 170.6.

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In our view, petitioner is entitled to writ relief because Solberg cannot be

“fairly distinguished” (Trope v. Katz (1995) 11 Cal.4th 274, 287) from the factual

scenario presented here. Under these circumstances, we conclude Solberg precluded

respondent court from assessing the motivations and weighing the consequences of the

district attorney’s peremptory challenges as a basis for denying a section 170.6 motion on

separation of powers grounds.

Solberg—Factual and Procedural Context

The factual and procedural context of Solberg, supra, 19 Cal.3d 182, is

complicated, with a technical wrinkle that potentially bears on its authoritative power. In

four prostitution matters, the deputy district attorney exercised his section 170.6 right to

disqualify the assigned municipal court judge prior to hearings scheduled to entertain

dismissal motions. The municipal court judge declined to disqualify herself. (Solberg,

supra, 19 Cal.3d at pp. 187-188.) At superior court writ proceedings initiated by the

district attorney, counsel for the municipal court offered to prove that the disqualification

motions “were ‘blanket challenges’ motivated by prosecutorial discontent with [the

municipal court judge’s] prior rulings of law.” (Id. at p. 188.) The superior court judge

“denied the offer as immaterial” and “quashed subpoenas against the district attorney and

his staff for the purpose of eliciting such proof.” (Ibid.) The superior court judge issued

writ relief compelling disqualification of the municipal court judge. This judgment was

appealed and the California Supreme Court later granted review. (Id. at pp. 188-189.)

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, 19 Cal.3d at p. 188.) The

superior court judge denied the motions on two grounds: (1) he was acting as an

appellate judge in the matter at issue; and (2) the challenges were filed by real parties in

interest (not true parties). (Id. at p. 189.) Real parties filed a writ petition with the Court

of Appeal to challenge the superior court judge’s denial of their section 170.6 motions;

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“that proceeding [was brought before the Supreme Court] on an alternative writ issued by

the Court of Appeal.” (Solberg, supra, 19 Cal.3d at p. 189.)

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 compelling 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, 19 Cal.3d at p. 204, italics added.) There was no

need to affirm or reverse the judgment; there was no longer any judgment to review. The

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opinion could have ended on its fifth page.

4

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,

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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, 19 Cal.3d at p. 190.)

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) 166 Cal.App.4th 255, 272

[declining to follow dicta of California Supreme Court].) Of course, “it is often difficult

to draw hard lines between holdings and dicta.” (See United Steelworkers of America v.

Board of Education (1984) 162 Cal.App.3d 823, 834 (United Steelworkers).) In United

Steelworkers, the appellate court treated a prior Supreme Court’s “broad answers to the

questions raised by all parties” for guidance “on remand” as a holding. (Ibid.) Similarly,

in Solberg the court intended to instruct the lower court on remand and provided a full

account of its reasoning in providing those instructions.

Moreover, “‘[e]ven if properly characterized as dictum, statements of the

Supreme Court should be considered persuasive. [Citation.]’ [Citation.]” (Hubbard v.

Superior Court (1997) 66 Cal.App.4th 1163, 1169.) “When the Supreme Court has

supra, 19 Cal.3d at p. 190, italics added.) But nothing in the Solberg opinion suggests

that the constitutionality of section 170.6 was before it in the writ proceeding. And the

court’s explanation of why it decided to address the merits of the appeal—because “the

issues presented . . . will doubtless arise on remand” (ibid.) was unnecessary if the

constitutional analysis was necessary to the decision on the writ.

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conducted a thorough analysis of the issues and such analysis reflects compelling logic,

its dictum should be followed.” (Ibid.)

In sum and on balance, we are bound by Solberg in our examination of the

separation of powers issue presented. Even if rightly considered dicta, the 14 pages of

analysis included in Solberg on the separation of powers issue cannot simply be

discarded by an inferior court. We need not decide whether the unusual procedural

features of Solberg would affect our Supreme Court’s application of stare decisis

principles should it choose to review the instant case.

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 power 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, 50 Cal.2d 693, which held 19 years

earlier that section 170.6 was constitutional. Point by point, Solberg rejected critiques of

section 170.6 and Johnson. (Solberg, supra, 19 Cal.3d at pp. 191-193.) After stating

actual prejudice is not required to invoke section 170.6, Solberg characterized section

170.6 as “‘an extraordinary right to disqualify a judge.’” (Solberg, supra, 19 Cal.3d at p.

193.) Much of the initial analysis discussed asserted abuses of section 170.6 that had

only become known after Johnson, e.g., judge-shopping (including to avoid a judge

whose legal views are not helpful to one’s case), use for tactical advantage (including to

delay a case, particularly in single-judge courtrooms or single-judge specialty courts),

and false swearing of affidavits. (Solberg, supra, 19 Cal.3d at pp. 194-200.)

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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

“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. . . . [P]rostitution 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 show it was primarily based on the People’s dissatisfaction with

[the municipal court judge’s] prior legal ruling on discriminatory law enforcement.”

(Solberg, supra, 19 Cal.3d at p. 194, fn. 11.)

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, 19 Cal.3d at p. 195.) But the existence of abuses did not result

in the court declaring section 170.6 to be unconstitutional, either in general or as applied

to the specific case before it. (Solberg, supra, 19 Cal.3d at pp. 192-200.)

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, 50 Cal.2d 693, suggests a facial challenge analysis. The court also

recognized the significant delay in a single-judge court and the inevitable delay in even a

multi-judge court that will result from the filing of an affidavit. (Solberg, supra, 19

Cal.3d at p. 195.) It acknowledged that in multi-branch courts, a disqualification may

also result in a desired change in the place as well as the date of trial and “in courts with

specialized departments—such as a psychiatric or juvenile department—the statute has

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been used to remove the judge regularly sitting in that department in the hope of

benefiting from the substitution of a less experienced judge.” (Ibid.) And lastly, the

court recognized the statute could be “invoked to intimidate judges generally and in

certain cases even to influence the outcome of judicial election campaigns [citation].”

(Ibid.) After consideration of these various potential abuses, the court concluded it would

not hold the statute invalid as applied. (Ibid.)

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 plaintiff 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 flatly rejected the notion that the concerns particular to criminal

law made any difference. “[T]his contention is different not in kind but only in degree

from the arguments rejected in Johnson, and [] the difference does not warrant a contrary

result.” (Solberg, supra, 19 Cal.3d at p. 202.) “[T]he 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.” (Id. at p. 204.)

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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 client than the judge whom they disqualify). (Solberg, supra, 19 Cal.3d at

p. 202.) Second, Solberg described its prior analysis of blanket challenges in a judicial

misconduct opinion (McCartney v. Commission on Judicial Qualifications (1974) 12

Cal.3d 512, overruled on other grounds in Spruance v. Commission on Judicial

Qualifications (1975) 13 Cal.3d 778, 799 & fn. 18 (McCartney)). In McCartney, the

court was critical of blanket challenges but did not indicate that such an abuse “vitiates”

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section 170.6. (Solberg, supra, 19 Cal.3d at p. 203.)

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

5

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 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 by withdrawing from each deputy

the individual decision whether or not to appear before [a particular judge]. 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.”

(McCartney, supra, 12 Cal.3d at p. 538, fn. 13.) But in the text of the opinion,

McCartney observed, “the Legislature clearly foresaw that the peremptory challenge

procedure would be open to such abuses but intended that the affidavits be honored

notwithstanding misuse.” (Id. at p. 538.)

16

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, 19

Cal.3d at p. 202, fn. 22.) “The effect of [section 170.6] is at most to remove the

individual judge assigned to the case or the department, but not to deprive the court of the

power to hear such cases by assignment of another judge.” (Solberg, supra, 19 Cal.3d at

p. 202, fn. 22.)

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, 19 Cal.3d at p. 204.) Solberg also denied a motion to appoint a referee to take

evidence concerning abuses of section 170.6; such evidence “is not material to the

disposition” of the appeal because the court assumed the abuses it described were true.

These abuses did not render the statute “invalid as applied.” (Solberg, supra, 19

Cal.3d at p. 195, fn. 12.) Solberg implicitly, if not explicitly, suggests that courts should

not conduct evidentiary hearings (or otherwise marshal evidence on their own, as

happened here) to determine the extent of the abuses committed by parties utilizing

section 170.6 challenges. Instead, courts should grin and bear this “reasonable—and

hence valid—accommodation of the competing interests of bench, bar, and public on the

subject of judicial disqualification.” (Solberg, supra, 19 Cal.3d at p. 204.) Any

adjustments to this balance should be made by the Legislature. (Ibid.)

17

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, 19 Cal.3d at p. 187), the

Solberg court determined the statute did not “‘substantially impair’ or ‘practically defeat’

the exercise of the constitutional jurisdiction of the trial courts.” (Id. at p. 204.) But the

court acknowledged future adjustments to this sensitive balance of the competing

interests of bench, bar, and public on the subject of judicial disqualification may become

necessary or desirable. (Ibid.)

Circumstances within our justice system have changed dramatically in the

nearly four decades since Solberg was decided. Public safety and the constitutional rights

of the accused remain primary concerns as courts grapple with increased caseloads, a

steady stream of statutory changes, and reduced funding. Examples of statutory changes

that have had major impacts on court operations include the Safe Neighborhoods and

Schools Act of 2014, the California Criminal Realignment Act of 2011, and the Gang

Violence and Juvenile Crime Prevention Act of 1998.

Solberg may be “good law,” in the 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

6

reality of the justice system. Broadly speaking, Solberg leaves no room to remedy

6

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

18

extraordinary abuses like those apparently perpetrated in the instant case. The holding in

Solberg (i.e., the exercise of a peremptory challenge under § 170.6 never results in a

separation of powers violation, regardless of the extent of the abuse) arguably conflicts

with the direction of its separation of powers jurisprudence. (See Steen v. Appellate

Division of Superior Court (2014) 59 Cal.4th 1045, 1053 [one branch may not “defeat or

materially impair the inherent functions of another”]; Carillo and Chou, California

Constitutional Law: Separation of Powers (2011) 45 U.S.F. L. Rev. 655, 678-681

[California Supreme Court generally approaches separation of powers issues by

determining if a core power has been materially impaired].) We posit that the judiciary’s

core power “‘to control its order of business’” and safeguard “‘the rights of all suitors’”

(Lorraine v. McComb (1934) 220 Cal. 753, 756) can be materially impaired if a blanket

challenge goes too far.

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) 8 Cal.App.4th 688 (Williams).)

In Williams, supra, 8 Cal.App.4th at page 695, a criminal defendant alleged

that the prosecutor had exercised a peremptory challenge against the (black male) judge

based on group bias against blacks. The Williams trial judge denied the section 170.6

challenge. (Williams, supra, 8 Cal.App.4th at p. 695.) The appellate court issued writ

relief requiring the disqualification of the trial judge because the petitioner complied with

the “procedural requisites.” (Id. at pp. 698-699 [“peremptory challenge was thus timely

and in proper form, and recusal of [j]udge was mandatory”].) But in doing so, Williams

expressed the view that “[s]ection 170.6 cannot be employed to disqualify a judge on

account of the judge’s race. A fortiori, section 170.6 cannot be implemented in such a

(1981) 69 Cal. L. Rev. 1445 [advancing thesis that peremptory challenges are an

undesirable solution to problems of judicial disqualification].)

19

way as to preclude inquiry into whether the statute has been employed to disqualify a

judge on account of race.” (Williams, supra, 8 Cal.App.4th at p. 707.) Section 170.6

challenges based on group bias, a violation of the equal protection clause of the United

States Constitution, cannot reasonably be grouped in among the abuses deemed to be

mere nuisances in Solberg, supra, 19 Cal.3d 182. (Williams, supra, 8 Cal.App.4th at pp.

706-707.) “[A]ny party charging that his adversary has used a section 170.6 challenge in

a manner violating equal protection bears the burden of proving purposeful

discrimination. [Citation.]” (Williams, supra, 8 Cal.App.4th at p. 708.) A prima facie

showing of purposeful discrimination was not made in Williams. (Id. at p. 711.)

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

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 (Ariz. 1986) 722 P.2d 267; People ex rel. Baricevic v.

Wharton (Ill. 1990) 556 N.E.2d 253; State v. Erickson (Minn. 1999) 589 N.W.2d 481.)

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, 19 Cal.3d at p. 202.) But the experience of this case disproves the Supreme

Court’s deductive logic. For whatever reason, the district attorney appears to be

unconcerned with blowback from the blizzard of affidavits filed by the People.

20

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, 19 Cal.3d at p. 202.) This line of

thought implies judges will violate their ethical duties, including the duty to “perform the

duties of judicial office impartially.” (Cal. Code Jud. Ethics, canon 3.) It seems absurd

to justify absolute deference to a statute presuming the good faith of attorneys in filing

section 170.6 motions by assuming judges will react in bad faith to overuse of the statute.

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, 12 Cal.3d 512, not an

opinion procedurally situated to assess a separation of powers challenge to the use of a

blanket challenge. (Solberg, supra, 19 Cal.3d at p. 202 [deeming its discussion of

McCartney to be the “more important[]” of its two lines of argument].) As noted by

respondent court in this case, “the broad pronouncement in McCartney, on which Solberg

relied, is, at best, dictum.”

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, 19 Cal.3d at p. 205, dis. opn.

of Tobriner, J.)

21

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 branches 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) 205

Cal.App.3d 857, 861-862), we call on our Supreme Court to reexamine Solberg.

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 new and

different order assigning this case to a judge other than Judge Goethals. The order to

show cause is discharged.

O’LEARY, P. J.

I CONCUR:

ARONSON, J.

22

ARONSON, J., 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) 19 Cal.3d 182 (Solberg) resolves the issues raised here, I join Justice

O’Leary’s lead opinion that Solberg compels us to grant the petition by the People of the

State of California (petitioner) for a peremptory writ of mandate directing respondent

Superior Court of Orange County (respondent court) to vacate its order denying

7

petitioner’s disqualification motion under Code of Civil Procedure section 170.6.

Respondent 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 lead 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

7

All statutory references are to the Code of Civil Procedure.

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.)

Although I reach a different result, I agree with several observations

Justice Thompson makes in his dissent. For example, I agree Solberg did not inoculate

section 170.6 against all conceivable separation of powers challenges, but rather left

room for future as applied challenges. The nature of every as applied challenge is that it

must be evaluated on its own merits. I also agree substantial evidence supports

respondent court’s conclusion the district attorney engaged in blanket papering of

Judge Goethals and did so to retaliate and punish a widely respected and experienced

jurist the district attorney previously accepted on a routine basis. Nonetheless, I cannot

agree with the dissent’s conclusion Solberg does not control the outcome here.

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. at p. 8, fn. 2.) The dissent also distinguishes the

“character and magnitude” of the blanket challenges here from the four challenges lodged

in Solberg. (Dis. opn. at pp. 11-13.) I read Solberg differently. Solberg found 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, 19 Cal.3d at p. 202), but Solberg concluded this

2

posed no separation of powers violation because reassignment did not deprive the court

of the power to hear the case (id. at p. 202, fn. 22). Nor did Solberg see blanket

challenges as a threat to judicial independence, even if “invoked to intimidate judges

generally” or used “to influence the outcome of judicial election campaigns.” (Id. at

p. 195.)

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 found that blanket challenges under section 170.6

8

did not violate the separation of powers doctrine. As explained in the lead opinion,

8

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 also 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 disqualify a judge based solely on a suspicion the judge

would be biased. It is the express terms of the statute that create the potential for

undermining court functions.

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.

3

Solberg is binding on this court, and therefore compels us to grant the petition because

respondent court abused its discretion in failing to follow Solberg’s dictates. (See People

v. Superior Court (Brim) (2011) 193 Cal.App.4th 989, 991 [“Failure to follow the

applicable law is an abuse of discretion”].)

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, 19 Cal.3d at p. 203.) Not

only is Solberg internally inconsistent in ratifying bad faith prejudice claims barred by

section 170.6, it also conflicts with the Supreme Court’s earlier jurisprudence on the

constitutionality of statutes allowing peremptory challenges to individual judges. Based

on the district attorney’s use of blanket papering in this case and similar tactics in other

jurisdictions, this may be an opportune time for the Supreme Court to clarify the

constitutional analysis in evaluating whether institutionalized blanket challenges violate

the separation of powers doctrine.

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) 50 Cal.2d 693, 696-697 (Johnson); Austin v. Lambert (1938) 11 Cal.2d 73, 75-76

(Austin).) In 1937, however, the California Legislature enacted section 170.5 allowing a

party to remove a judge from a case without establishing a disqualifying characteristic or

an independent judicial determination. Section 170.5 required the presiding judge to

assign a new judge to hear a case when a litigant simply filed a written “peremptory

4

challenge” to the assigned judge. The statute did not require the litigant to state the

ground for his or her challenge or to declare under oath that any disqualifying

characteristic existed. (Austin, at pp. 74-75.) As Austin noted, “Nothing is said in the

new section about bias, prejudice, interest or any other recognized ground for

disqualification.” (Id. at p. 76.)

In Austin, the Supreme Court held 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. 76, 79.) 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 seeking to

disqualify the judge 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, 11 Cal.2d at p. 76.) As the

Supreme Court explained, “Such an ex parte proceeding has been upheld on the ground

5

that the charge of bias or prejudice under oath is at least an imputation of such

disqualification sufficient to save the statute from successful attack on constitutional

grounds.” (Id. at p. 76.)

Nearly 20 years later, the California Legislature enacted section 170.6

modeled after the statutes from other states discussed in Austin. (Solberg, supra,

19 Cal.3d at p. 195.) As originally enacted, section 170.6 only applied to civil actions,

but otherwise allowed a party to disqualify a judge in the same manner as the current

statute—by filing a declaration under oath asserting the “‘party or attorney cannot or

believes that he cannot have a fair and impartial trial or hearing before such judge.’”

(Johnson, supra, 50 Cal.2d at p. 701; see id. at pp. 695-696.)

Just a year after the statute’s enactment, the Supreme Court upheld the

facial constitutionality of section 170.6, rejecting a claim the statute violated the

separation of powers doctrine and impermissibly interfered with core judicial functions

by allowing a litigant or attorney to disqualify a judge for prejudice without requiring a

statement identifying the reasons the litigant or attorney believed the judge was

prejudiced, without proof of prejudice, and without a judicial determination of the judge’s

prejudice. (Johnson, supra, 50 Cal.2d at pp. 695-696.) Johnson explained the

Legislature has the authority to establish reasonable regulations concerning judicial

disqualification, and bias or prejudice long has been a recognized ground for

disqualification. Johnson also concluded section 170.6 established a permissible means

of disqualifying a judge for prejudice, explaining the Legislature’s decision to give

litigants an opportunity to disqualify a judge solely based on a sworn statement

professing the litigant’s belief in the judge’s prejudice was necessary to insure confidence

in the judiciary and avoid the suspicion that might arise in cases where it may be difficult

or impossible for the litigant to establish actual prejudice to the satisfaction of a judicial

body. (Johnson, at p. 697.)

6

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

9

declaring under oath that the judge is prejudiced. The Supreme Court found this good

faith requirement to be an effective safeguard because the court could not “assume that

there will be a wholesale making of false statements under oath.” (Johnson, supra,

50 Cal.2d at p. 697.) Later, the Supreme Court explained Johnson “relied heavily” on

these statutory safeguards in upholding section 170.6’s constitutionality. (McClenny v.

Superior Court (1964) 60 Cal.2d 677, 685-686.)

One year after Johnson, the Legislature amended the statute so that it also

would apply to criminal actions. (See Solberg, supra, 19 Cal.3d at p. 201, fn. 20.)

Solberg’s Analysis of Section 170.6

In Solberg, the Supreme Court revisited section 170.6’s constitutionality,

and again affirmed the statute’s validity. (Solberg, supra, 19 Cal.3d at p. 187.) As in

Johnson, the court concluded section 170.6 did not violate the separation of powers

doctrine or impair the judiciary’s independence because the statute and the declaration

procedure it established was a reasonable exercise of the Legislature’s authority to

9

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, 50 Cal.2d at p. 697.)

7

regulate the disqualification of judges. Solberg emphasized the declaration under

section 170.6 did not establish actual prejudice, nor was actual prejudice required to

disqualify a judge under the statute. Rather, section 170.6 merely required the litigant to

hold a good faith belief in the judge’s prejudice, and the good faith of that belief was

established by the litigant declaring the belief under oath. (Solberg, at p. 193; id. at

p. 200 [“we have repeatedly held that the [section 170.6] motion . . . ‘requires a good

faith belief in the judge’s prejudice,’” and that good faith is established by declaring that

belief under oath because “‘the objective of a verification is to insure good faith in the

averments of a party’”].)

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,

19 Cal.3d at p. 194.) The Supreme Court acknowledged this experience revealed litigants

had invoked section 170.6 for a wide variety of reasons other than disqualifying a judge

they believed was prejudiced, including removing a judge solely based on the judge’s

views on the law, delaying a hearing or trial, changing venue, obtaining a less

experienced judge, intimidating judges, and even influencing judicial election campaigns.

The court also acknowledged these abuses impacted the operation of California’s trial

courts as they rescheduled and reassigned cases to accommodate the parties’ right to have

a new judge assigned. (Solberg, at pp. 194-195.)

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 merely “added quantitatively but not qualitatively to [the court’s]

understanding of the problem.” (Solberg, supra, 19 Cal.3d at p. 196.) As the court had

explained in Johnson, the Legislature considered these potential abuses of the statute

8

when it enacted section 170.6 and concluded the statute’s benefits outweighed the

potential problems these abuses posed to the courts. Second, as Johnson also explained,

the Legislature included safeguards in section 170.6 to minimize these abuses, including

requiring the litigant or attorney to show good faith by declaring under oath that the judge

is prejudiced. (Solberg, at pp. 196-197.) The Supreme Court again observed it would not

“‘assume that there will be wholesale making of false statements under oath.’” (Id. at

p. 197.)

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, 19 Cal.3d at

p. 202.) As defined by Solberg, a blanket challenge “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—such as those involving

prostitution or illegal narcotics—or in all criminal cases to which he is assigned.” (Ibid.)

Because the district attorney is the counsel for the plaintiff in all criminal cases and the

public defender is the counsel for the defendant in many criminal cases, a blanket

challenge can have a much broader impact than other potential abuses under

section 170.6 by preventing a judge from hearing any cases of a certain type or even

causing the judge’s removal from the criminal bench if the district attorney or public

defender challenge the judge in nearly every case. (Solberg, at pp. 201-202.)

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

9

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, 19 Cal.3d at p. 203, quoting McCartney v.

Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 538, fn. 13, disapproved on

other grounds in Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d

778, 799, fn. 18.)

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, 19 Cal.3d at p. 202 & fn. 22.) The Supreme Court condemned blanket challenges,

but nonetheless concluded that abuse of section 170.6 did not “vitiate[] the statute”

because “‘the Legislature clearly foresaw that the peremptory challenge procedure would

be open to such abuses but intended that the affidavits be honored notwithstanding

misuse. [Citation.]’ 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.” (Solberg, at pp. 203-204, fn. omitted.)

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

10

assigned to replace their unseated colleague, and the presiding judge, who will make that

10

assignment.” (Solberg, supra, 19 Cal.3d at p. 202.)

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, 19 Cal.3d at p. 202.) The court’s earlier analysis in

Johnson and Solberg’s definition of a blanket challenge as a bad faith claim of prejudice

appear at odds with Solberg’s conclusion that blanket challenges in criminal cases do not

violate the doctrine of separation of powers.

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 specifying a

recognized basis for disqualification or making a showing of any kind. (Austin, supra,

11 Cal.2d at pp. 75-76, 79.) Providing the Legislature with a roadmap to the elements of

10

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.

11

a constitutional statute, the Austin court explained that peremptory disqualification

statutes in other states survived constitutional attack because requiring the party to allege

bias or prejudice under oath at least imputed a recognized and well-accepted ground for

disqualification. (Id. at pp. 76-78.)

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

11

case. (Solberg, supra, 19 Cal.3d at p. 203.) Under that definition, a blanket challenge

to a judge lacks the good faith belief required by section 170.6 and the statute is

unconstitutional as applied to that challenge. (See School Dist. of Okaloosa County v.

Superior Court (1997) 58 Cal.App.4th 1126, 1136-1137 [Solberg’s analysis suggests

showing of bad faith invalidates section 170.6 motion].) Indeed, if a section 170.6

challenge is made in bad faith, then the statute as applied to that challenge is no different

than the statute Austin found unconstitutional because the statute permits a litigant or

attorney to disqualify an otherwise qualified judge for a reason other than the judge’s

bias, the only statutorily-recognized ground for disqualification. (See Austin, supra,

11 Cal.2d at p. 79; Autoland v. Superior Court (1988) 205 Cal.App.3d 857, 861-862

[section 170.6 “is nothing more nor less than the old unconstitutional statute recycled

with an empty pretension of a sworn statement”].) Nonetheless, current law requires a

11

The Supreme Court’s imputation of bad faith to blanket challenges may be

over inclusive 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 engaged in misconduct or

prosecutorial error under Brady v. Maryland (1963) 373 U.S. 83 and Massiah v. United

States (1964) 377 U.S. 201. Before those rulings, the district attorney routinely accepted

Judge Goethals without question.

12

court to accept an affidavit of prejudice under section 170.6 even if the attorney lodging

the challenge admits to the court the filing is a sham. (See School Dist. of Okaloosa

County, at pp. 1136-1137.)

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 wholesale making of

12

false statements under oath.’” (Solberg, supra, 19 Cal.3d at p. 197; see Johnson, supra,

50 Cal.2d at p. 697.) But under Solberg’s definition of a blanket challenge, the wholesale

making of false statements under oath occurs by definition.

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, 19 Cal.3d at p. 198.) As

Solberg explains, sound reasons support the Legislature’s decision to prohibit hearings

based on suspicion alone. (Id. at pp. 198-200.) But where substantial evidence, rather

than reasonable suspicion, exists showing bad faith blanket challenges by the district

attorney or public defender, a limited inquiry nonetheless may be warranted. I believe

12

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, 50 Cal.2d at p. 697.) Whether the Legislature considered these

abuses and problems, however, should not be the governing standard for evaluating a

separation of powers challenge. Rather, as Solberg recognizes, the appropriate inquiry is

whether the statute on its face or in its application substantially impairs the constitutional

powers of the courts or practically defeats their exercise. (Solberg, at p. 192.)

13

the important issues raised by this case deserve further scrutiny, by the Supreme Court,

the Legislature, or both.

ARONSON, J.

14

THOMPSON, J., 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) 11 Cal.2d 73, 79.) ‘“We cannot permit a device

intended for spare and protective use to be converted into a weapon of offense and

thereby to become an obstruction to efficient judicial administration.’ [Citation.]”

(Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 (Solberg).)

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 their motion

ensued from Judge Goethals’ misconduct rulings against them. Judge King concluded

their 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.

Solberg does not compel a different conclusion. Solberg held section 170.6

is constitutional on its face, despite the potential for various types of abuses, including

blanket challenge abuses. Solberg did not hold the statute was constitutional as applied,

or that a district attorney’s blanket challenge abuse of the statute cannot violate the

separation of powers doctrine. And in any event, Solberg can be fairly distinguished

from this case, both legally and factually.

STANDARD OF REVIEW

We review an order denying a section 170.6 peremptory challenge for

abuse of discretion. (Grant v. Superior Court (2001) 90 Cal.App.4th 518, 523.) “The

abuse of discretion standard is not a unified standard; the deference it calls for varies

according to the aspect of a trial court’s ruling under review. The trial court’s findings of

fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo,

and its application of the law to the facts is reversible only if arbitrary and capricious.”

(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)

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.

a. 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’ rulings that prosecutors

and police officers had committed misconduct. These factual findings are supported by

substantial evidence, as set out below.

13

The evidence is undisputed. In more than three years before February 24,

2014, Judge Goethals was assigned 35 murder cases and the district attorney disqualified

him just once under section 170.6. In roughly 18 months after February 24, 2014, Judge

Goethals was assigned 58 murder cases and the district attorney disqualified him 55 times

under section 170.6.

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) 373 U.S. 83, and announced a tentative decision to

recuse that deputy district attorney from both cases as a discovery sanction.

13

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 took judicial notice of these facts. (Evid. Code, § 452, subds. (d) & (h);

People v. Thomas (1972) 8 Cal.3d 518, 520, fn. 2.)

2

Beginning in March 2014 and continuing through March 2015, Judge

Goethals conducted a series of extraordinary hearings on defense motions in People v.

Dekraai, Orange County Superior Court (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) 377 U.S. 201.

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 time

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 all but three nongang murder cases.

b. Judge King’s Legal Conclusion Is Correct.

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) 161 Cal.App.4th 242, 250.)

It is axiomatic that all statutes, including section 170.6, must be applied in a manner

which is consistent with the California and United States Constitutions.

3

The separation of powers clause of the California Constitution divides the

powers of the state government into three branches, and dictates that “[p]ersons 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) 59 Cal.4th 1045, 1053.)

“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) 187 Cal.App.3d 393, 398-399.)

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) 220 Cal. 753, 756.)

Taken together, these basic constitutional principles compel the 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 trenched upon, lessened or limited by the legislature”].) This

conclusion is consistent with the rule that a district attorney cannot take any action under

section 170.6 which violates any provision of the constitution. (Cf. People v. Superior

Court (Williams) (1992) 8 Cal.App.4th 688.) It is also consistent with the rule that the

authority granted under section 170.6 “‘is not absolute and unlimited.’” (Id. at p. 698.)

4

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 Cal.3d 557, 566.) It was not an abuse of discretion.

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) 50 Cal.2d 693 (Johnson), which held in a civil context,

that section 170.6 is constitutional on its face.

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 remand,”

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, 19 Cal.3d at p. 187, fn. omitted.)

5

“On the same day criminal complaints charging Diana Solberg, Constance

Black, and Javette Rollins with soliciting an act of prostitution also came before Judge

Marie-Victoire. In each, defense counsel moved to dismiss; the judge set the matter for

hearing in her own department . . . ; Rudloff summarily renewed his motion to disqualify;

and the judge summarily denied it.” (Solberg, supra, 19 Cal.3d at p. 187.)

“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, 19 Cal.3d at p. 188, fn. omitted.)

On appeal the appellants “principally contend[ed] that section 170.6 is

unconstitutional because it violates the doctrine of separation of powers (Cal. Const., art.

III, § 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 basic 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, 19 Cal.3d at p. 192.)

It then observed, “Applying the foregoing principle in Johnson, we held that the

disqualification of trial judges is an aspect of the judicial system which is subject to

reasonable legislative regulation . . . .” (Ibid.)

6

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, 19

Cal.3d at p. 194.) The court described two principal categories of abuse. “First, section

170.6 has assertedly been invoked for the purpose of ‘judge-shopping,’ i.e., of removing

the assigned judge from the case on grounds other than a belief that he is personally

prejudiced within the meaning of the statute.” (Ibid.) “Second, section 170.6 is said to

have been invoked for a variety of purely tactical advantages.” (Id. at p 195.)

Solberg then declared: “We need not lengthen this recital by recounting

further examples of asserted abuse of section 170.6 . . . . For present purposes we assume

the charges are true. 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, 19 Cal.3d at p. 195.) The court explained “it is

inaccurate to assert that we did not know of these abuses when we decided Johnson.”

(Ibid.) “Although we did not pause to catalog the various misuses of the statute, the

practices now complained of were clearly within the contemplation of the court. The

experience of the ensuing years has added quantitatively but not qualitatively to our

understanding of the problem.” (Id. at p. 196.)

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, 19 Cal.3d at p. 204.)

7

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

14

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, 19 Cal.3d at p.

187, italics added.) In this instance, the words “as applied” related to the fact that after

Johnson, section 170.6 was amended to apply to both criminal and civil cases.

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 holding that section 170.6 is now

unconstitutional as applied.” (Solberg, supra, 19 Cal.3d at p. 194, italics added.) Here

the court was merely summarizing a contention.

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, 19 Cal.3d at p. 195, fn. omitted, italics added.)

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, 19 Cal.3d at p. 187.)

14

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) 58 Cal.App.4th 57, 61.)

8

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, 19 Cal.3d at p. 201.) To understand this aspect of Solberg, we must look

at the case it mainly relied upon, McCartney v. Commission on Judicial Qualifications

(1974) 12 Cal.3d 512, disapproved on other grounds in Spruance v. Commission on

Judicial Qualifications (1975) 13 Cal.3d 778, 799, footnote 18 (McCartney).

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 to a policy of the public defender’s office to

prevent him from presiding over criminal trials.” (Solberg, supra, 19 Cal.3d at p. 203.)

McCartney said: “We find this ‘defense’ to be a slim reed . . . . [¶]

[D]isrespect on the part of the public defender cannot serve to justify petitioner’s

injudicious response. As previously indicated, the Legislature clearly foresaw 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, 50 Cal.2d at p. 697.)

9

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, 12 Cal.3d at p. 538, fn. 13.)

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 (conc. & 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) 66 Cal.App.4th 1163, 1169.)

Further, to the extent that McCartney said anything about the constitutionality of section

170.6, it merely reiterated the holding of Johnson—the statute, as enacted by the

Legislature, is constitutional on its face, despite the potential for this type of abuse.

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.)

10

Then Solberg commented on the blanket challenge discussion in

McCartney. ‘“We acknowledged [citation] that ‘the entire policy itself may have been an

affront to the court’s dignity if it stemmed from public defenders’ dissatisfaction with

[Judge McCartney’s] “hard line” performance as a district attorney rather than a good

faith belief in prejudice.’ (Italics deleted.) [¶] . . . We felt compelled, nevertheless, to

speak to the ‘blanket’ nature of these filings.” (Solberg, supra, 19 Cal.3d at p. 203.)

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 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.” 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) 11 Cal.4th 274, 287) from this case, both legally and factually.

The analysis and comparison below reveals the separation of powers issues are different,

and the character and magnitude of the blanket challenge abuses are different. These

legal and factual differences warrant a different result, because the ratio decidendi of

Solberg simply does not encompass the legal issue or the facts presented in this case. As

a result, Solberg has little or no force as controlling precedent here. (See generally 9

Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 509, p. 572.)

11

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 the statute, as enacted by the Legislature,

did not violate the separation of powers doctrine, despite the potential for various types of

abuses, including blanket challenges. (Solberg, supra, 19 Cal.3d at pp. 186-187.)

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, 19 Cal.3d at p. 203.)

Hence, I cannot agree with the lead opinion conclusion that: “In sum and

on balance, we are bound by Solberg in our examination of the separation of powers issue

presented.” While the constitutional provisions at issue here and in Solberg are the same

(Cal. Const., art. III, § 3, art. VI, § 1), the separation of powers questions are not.

b. The Character of the Blanket Challenge Abuses Are 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, 19 Cal.3d at p. 188.) They disagreed with her

“views on the legal issue relating to the discriminatory enforcement of prostitution laws.”

(Id. at p. 206.)

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.”

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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, 19 Cal.3d at p. 206.) This is important

because, as the court said in Solberg, “section 170.6 explicitly recognizes such belief as a

sufficient ground for disqualification . . . .” (Id. at p. 193.) It does not recognize the

desire to intimidate, punish or silence as a sufficient ground for disqualification.

c. The Magnitude of the Blanket Challenge Abuses Are Different.

In Solberg the district attorney disqualified Judge Marie-Victoire in four

prostitution cases. Here the district attorney disqualified Judge Goethals in 55 murder

cases. This is noteworthy because while the small number of disqualifications in Solberg

can be viewed “as a relatively inconsequential price to be paid for the efficient and

discreet procedure provided in section 170.6” (Solberg, supra, 19 Cal.3d at p. 204), the

same cannot be said of the comparatively large number of disqualifications here.

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.

THOMPSON, J.

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