# Solberg v. Superior Court

> California Supreme Court · March 22, 1977 · 19 Cal. 3d 182

URL: https://www.frixlaw.com/law-library/cases/9628796

## Case

- **Full name:** DIANA D. SOLBERG Et Al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO Et Al., Respondents; THE PEOPLE, Real Party in Interest; THE PEOPLE, Plaintiff and Respondent, v. THE MUNICIPAL COURT FOR THE SAN FRANCISCO JUDICIAL DISTRICT OF THE CITY AND COUNTY OF SAN FRANCISCO Et Al., Defendants and Appellants; DIANA D. SOLBERG Et Al., Real Parties in Interest and Appellants
- **Court:** California Supreme Court
- **Decided:** March 22, 1977
- **Citations:** 19 Cal. 3d 182; 137 Cal. Rptr. 460; 561 P.2d 1148; 1977 Cal. LEXIS 125
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tobriner
- **Judges:** Mosk, Tobriner
- **Cited by:** 211 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

TOBRINER, Acting C. J., Concurring and Dissenting.
Although I concur in the majority’s conclusion that Judge Perasso was properly disqualified in this case and thus agree with the majority’s disposition of these matters, I cannot join in the majority’s further conclusion that *205 Judge Marie-Victoire erred in rejecting the section 170.6 disqualification motion filed by the deputy district attorney in the municipal court.
In my view, 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. Unlike the majority, I do not believe that the judiciary is 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. In my view, both the language and the purpose of section 170.6 support the trial court’s refusal to recuse herself in the instant case.
Section 170.6, subdivision (1), provides in relevant part: “No judge . .. shall try any civil or criminal action . . . nor hear any matter . . . when it shall be established as hereinafter provided that such judge or court commissioner is prejudiced against any party or attorney or the interest of any party or attorney appearing in such action or proceeding.” (Italics added.) Section 170.6 subdivision (2) goes on to provide that the affidavit which a party or attorney must file to bring about the disqualification of a judge under section 170.6 should affirmatively state that the judge “is prejudiced against any such party or attorney ... so that such party or attorney cannot or believes that he cannot have a fair and impartial trial or hearing before such judge.” (Italics added.)
Thus, the statutory language posits the judge’s prejudice, or a party’s or attorney’s belief in the judge’s prejudice, as the essential basis for a section 170.6 disqualification motion. That a party or attorney believes that a judge is likely to rule against his interests does not invoke the section; rather, the party or attorney must have a “good faith belief in the [judge’s] prejudice.” (Italics added.) (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 531 [ 116 Cal.Rptr. 260 , 526 P.2d 268 ].)
Past California cases establish beyond doubt that a judge’s judicial philosophy or prior rulings of law do not afford a proper basis for a claim of prejudice. “ The words “bias” and “prejudice” ... refer to the mental attitude or disposition,of the judge towards a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.’ ” {Evans v. Superior Court (1930) 107 Cal.App. 372, 380 [ 290 P. 662 ].) As this court emphasized more than a half century ago: “[R]ulings *206 against a litigant, even when numerous and continuous, form no ground for a charge of bias or prejudice.” (McEwen v. Occidental Life Insurance Co. (1916) 172 Cal. 6, 11 [ 155 P. 86 ].)
The record in the instant case demonstrates that the disqualification motion at issue rested directly upon “the views that [the trial judge] entertain[ed] regarding the subject matter involved,” rather than any claim of personal enmity or ill will. Shortly before the present matter came before Judge Marie-Victoire, Judge Marie-Victoire had sustained, in separate criminal proceedings, a constitutional challenge to the procedures used to enforce the prostitution solicitation laws in San Francisco. When the instant charges—also pertaining to solicitation of an act of prostitution—came before Judge Marie-Victoire, the deputy district attorney stated in open court that his disqualification motion was premised on the fact that “the People don’t feel that we can get a fair trial in cases of these kinds in this court.” (Italics added.) This comment demonstrates that the disqualification motion emanated from the People’s disagreement with the merits of Judge Marie-Victoire’s views on the legal issue relating to the discriminatory enforcement of prostitution laws; the statement additionally establishes that the district attorney’s office had adopted a “blanket” policy of using section 170.6 to attempt to disqualify Judge Marie-Victoire in all such prostitution cases. Under these circumstances, I believe Judge Marie-Victoire properly concluded that the motion did not generate from a good faith belief in her “prejudice”; she correctly determined that section 170.6 did not compel her disqualification.
Although the majority do not suggest that a party’s disagreement with a judge’s rulings of law constitute a basis for a claim of prejudice, conceding the inappropriateness of the practice of “blanket challenges” under section 170.6 (see p. 203, ante), the majority apparently despair of any attempt to confine section 170.6 to its proper application without undermining the principal purpose of the section. The majority reason that judicial inquiry into whether or not allegations of prejudice have been made in good faith would violate the language of section 170.6 subdivision (3), which provides that when a disqualification motion is “duly presented” and an affidavit timely filed, “thereupon and without any further act or proof’ another judge must be assigned to the case. A disqualification motion, however, is not “duly presented” within the meaning of the statute when it appears on the face of the record that the motion does not rest on a belief in prejudice, but merely on a disagreement with the judge’s prior legal rulings.
*207 Ordinarily, of course, litigants need not state the grounds for their belief that the challenged judge is prejudiced. When a “blanket challenge” policy has been adopted, however, the requirement of a “good faith belief in prejudice” obviously has been violated. We intimated as much in our recent McCartney case, declaring that such a “blanket challenge” 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.” (Italics added.) ( 12 Cal.3d at p. 538 .) 1 In the instant case, of course, the deputy district attorney explicitly confirmed the existence of the “blanket challenge” policy in his statement in open court.
The instant ruling allows a litigant to remove a judge from the bendh despite the patently false nature of the claim of prejudice offered. No matter how transparent the deception, the majority instruct the trial judge to step aside. I cannot concur in the majority’s conclusion that the judiciary is powerless to prevent such an abusive exercise of the disqualification procedure.
The petition of the defendants and appellants for a rehearing was denied April 21, 1977. Tobriner, J., was of the opinion that the petition should be granted.
The majority imply that the legality of “blanket” challenges under section 170.6 was upheld in McCartney . As I read the McCartney decision, however, we did not hold that when a trial judge is challenged in accordance with an adopted policy of “blanket" disqualification that he must always honor the challenge and withdraw. Nor did we hold that blanket challenge practices are beyond the bounds of judicial inquiry. We merely stated that a practice of blanket challenges “is simply no answer to petitioner’s serious departures from a properjudicial role or his habitual intemperance toward defendants and court personnel.” ( 12 Cal.3d at p. 537 .)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9628796. Public record. Not legal advice.