Media Advisory – Writ petitions filed with DCA

Date: December 17, 2015


SANTA ANA, Calif. – The Orange County District Attorney (OCDA) Tony Rackauckas filed five writ petitions today with the Court of Appeal, Fourth Appellate District, Division Three, challenging the five rulings by the Honorable Richard M. King denying the OCDA from utilizing its right to file a peremptory challenge.

Here are some excerpts from the People’s brief filed today:

A. The People’s motion and declaration in support of disqualification of Judge Goethals was timely and properly filed.

A motion and declaration in support of disqualification must be timely filed. The statute requires, in relevant part, that,

If the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to or who is scheduled to try the cause or hear the matter is known at least 10 days before the date set for trial or hearing, the motion shall be made at least 5 days before that date. If directed to the trial of a cause with a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. If directed to the trial of a criminal cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all-purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance. (Code Civ. Proc., § 170.6, subd. (a)(2).)

Here, Judge King, who presides over the Master Criminal Calendar in Department C-5, assigned these cases to Judge Goethals for all purposes on Dec. 3, 2015. The People filed a Motion and Declaration in Support of Disqualification of Judge Goethals as to each defendant that same day. Neither real parties in interest nor respondent superior court has asserted the People’s challenge was untimely. The People’s motion and declaration to disqualify Judge Goethals were properly and timely filed.

B. Since the People’s challenge of Judge Goethals pursuant to Code of Civil Procedure Section 170.6 was timely and properly asserted, Judge King was required to accept it and assign the case to another judge.

The Supreme Court has long recognized a litigant’s right to summarily disqualify a judge pursuant to section 170.6, declaring,

It is well recognized that in enacting Code of Civil Procedure section 170.6 the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is “automatic” in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required. [Citations.] Accordingly, the rule has developed that, once an affidavit of prejudice has been filed under section 170.6, the court has no jurisdiction to hold further proceedings in the matter except to inquire into the timeliness of the affidavit or its technical sufficiency under the statute. [Citations.] When the affidavit is timely and properly made, immediate disqualification is mandatory. [Citation.] (McCartney v. Commission on Judicial Qualifications (1974) 12 Cal. 3d 512, 531-532, overruled on another point in Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d 778,799, fn. 18, emphasis in original.)

So ingrained in our system is the right to “paper” a judge, that courts have recognized it as ‘”a substantial right which is now part of the system of due process and judicial fair play in this state.’ [Citation.]” (People v. Superior Court (Williams) (1992) 8 Cal.App.4th 688, 697.)

By enacting section 170.6, the Legislature guaranteed litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice; proof of actual prejudice is not required. [Citation.] (Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 62, italics original.)

The only limitations to the disqualification of a judge under section 170.6 are the number and the timeliness of the motion.

There are strict statutory limits on the timing and the number of such motions which may be filed; however, if the motion is timely and in proper form, immediate disqualification is mandatory. The judge must recuse himself without further proof and the cause must be reassigned to another judge. [Citations.] (In re Jose S. (1978) 78 Cal.App.3d 619, 625.)

In other words, “[a] motion that conforms to all the requirements of section 170.6, … must be granted.” (Peracchi v. Superior Court (2003) 30 Ca1.4th 1245, 1249, italics added.)

The legal effect when a judge wrongfully refuses to accept a section 170.6 disqualification is stark. For ‘”once properly and timely challenged, the judge loses jurisdiction to proceed and all his subsequent orders and judgments are void. [Citation.]’ [Citations.]” (In re Jenkins (1999) 70 Cal.App.4th 1162, 1166, first and second modifications in original.)

Furthermore, judges may not second-guess the motivation behind a motion and declaration pursuant to section 170.6…

C. Judge King has no authority to abrogate The People’s “Substantial Right” to disqualify Judge Goethals pursuant to Code of Civil Procedure Section 170.6.

In refusing to grant the People’s properly-filed motion and declaration to disqualify Judge Goethals pursuant to section 170.6, Judge King filed a 46-page written order, in which he justifies and explains his reasons for refusing to follow clearly established precedent. In a nutshell, Judge King contends he can disregard well-settled California Supreme Court and Court of Appeal precedent because he believes the People are improperly blanket papering Judge Goethals and this has had an adverse impact on Judge King’s ability to properly administer the courts. Judge King’s argument is essentially that he may refuse to comply with section 170.6 because he believes the OCDA is abusing the peremptory disqualification procedure and this purported abuse has impacted the proper functioning of the courts. These arguments have repeatedly been rejected by the California Supreme Court and should be rejected by this Court.

In a footnote, the OCDA states, “The People do not concede Judge King’s contention that the OCDA is or was blanket papering Judge Goethals or that individual deputies filed section 170.6 motions against Judge Goethals in bad faith. Nor do the People concede Judge King’s contention that the section 170.6 motions filed against Judge Goethals since February 2014 have “substantially disrupted the orderly administration of justice in Orange County” or “negatively impacted” the assignment of” murder cases” and “all felony cases.” (Order Denying Motion to Disqualify Judge C.C.P. § 170.6, page 3, which is filed under separate cover as Exhibit 1.) These circumstances, even if they were accurate and true, are not material to the disposition of this writ petition.”