Date: January 25, 2016

*Study shows defense files 60 percent of judge disqualifications

SANTA ANA, Calif. – The Orange County District Attorney’s Office (OCDA) filed its reply late Friday, Jan. 22, 2016, on the five writ petitions filed with the Court of Appeal, Fourth Appellate District, Division Three (DCA), in response to the orders issued in December 2015, by the Honorable Richard M. King, “Order Denying Motion to Disqualify Judge.” The respondent, Orange County Superior Court, filed its response to those writ petitions by the Jan. 15, 2016, deadline. The OCDA’s reply was written by Senior Deputy District Attorney Stephan Sauer of the Appellate & Training Unit.

On Dec. 17, 2015, the OCDA filed five writ petitions with the DCA, challenging the five rulings by Judge King denying prosecutors from utilizing their right to file a peremptory challenge. The five cases include: People v. Jesus Montes and Ismael Zacaula (Case # 12CF2292), People v. Rito Tejeda (case # 14ZF0338), People v. George Galvan (case # 12NF1681), People v. Thomas Wilhelm (case # 12ZF0154), People v. Aleksandar Apostolovic (case # 15ZF0002).

The DCA may set dates for arguments, further briefing, or may rule based on these responses at a date to be determined.

The California Code of Civil Procedures section 170.6 gives every party the right to exercise a single peremptory challenge against any judge that litigant believes, in good faith, is prejudiced against him or her or his or her case. The authority conveyed by section 170.6 is a substantial right that is part of our system of due process and exists to ensure fair and impartial trials. The law does not require any party to explain their reasons for peremptorily challenging a judge, nor may a court inquire into those reasons.  It requires only that the party have a good faith belief that prejudice exists. 

To read the reply, please visit www.orangecountyda.org and select, “Reply to Judge King’s Order Denying Motion to Disqualify Judge,” in Reports under the Reports pull-down menu.

Here are some excerpts from the People’s response:

  • “If a peremptory challenge motion in proper form is timely filed under section 170.6, the court must accept it without further inquiry.” (Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59, emphasis added.) (page 2)
  • Thus, “[a] trial court abuses its discretion when it erroneously denies a motion to disqualify a judge.” (People v. Superior Court (Maloy) 91Cal.App.4th 391, 395.) (page 2)
  • At the outset it is important to establish what courts mean when they refer to a “blanket papering” of a judge. According to the Supreme Court a blanket paper “occurs when as a matter of policy a district attorney or a public defender instructs his deputies to disqualify a certain disfavored judge in a criminal case … or in all criminal cases to which he is assigned.” (Solberg, at p. 202, emphasis added; accord, People v. Superior Court (Williams) 8 Cal.App.4th 688 (Williams).) (page 3)
  • Thus, to constitute the “blanket” papering of a judge it is necessary that there be an order or edict from the district attorney (or public defender) to his or her deputies to peremptorily challenge a particular judge as a matter ofpolicy, which has the effect of “transforming the representations in each affidavit into bad faith claims of prejudice.” (McCartney, at p. 538, fn. 13.) (page 3)
  • For now, it is important to reiterate that even if the OCDA were blanket papering Judge Goethals in all homicide cases(which the People deny), the Supreme Court has made clear that circumstance does not justify Judge King’s refusal to accept the People’s section 170.6motions. Contrary to the arguments of respondent and real party, the Supreme Court did address the issue of blanket challenges to a judge in the context of the Separation of Powers Doctrine, concluding that even blanket challenges to a judge in all criminal cases does not violate the separation of powers. (Solberg, at pp. 201-205.) (page 3)
  • The court noted that even in the most extreme circumstances- i.e., the blanket papering of a judge in all criminal cases – ” [t]he effect of [section 170.6] is at most to remove the individual judge assigned to the case or department, but not to deprive the court of the power to hear such cases by assignment of another judge.” (Solberg, at p. 202, fn. 22, italics original.) The court viewed the abuses of section 170.6 “as a relatively inconsequential price to be paid for the efficient and discreet procedure provided in section 170.6.” (Solberg, at p. 204.) Thus, the court expressly rejected the argument that blanket challenges violate the separation of powers. (page 4)
  • Nothing in the rule prohibits individual attorneys who work for an agency from exercising their individual discretion to repeatedly file section 170.6 motions against a particular judge. In the end, the record relied upon by respondent and real party offers nothing more than speculation about the prosecutors’ motives for repeatedly challenging Judge Goethals. (page 5)
  • Judge King’s presumption of bad faith on the part of the prosecutor who filed the section 170.6 motion is completely contrary to the way courts have consistently interpreted section 170.6: “The law assumes that a party who disqualifies a judge by a motion under section 170.6 does so in good faith.(Brown v. Superior Court(1981) 124 Cal.App.3d 1059, 1061, emphasis added; accord, Williams, at p. 699.) (page 6)
  • The Solberg court explained the rationale for the “no questions asked” provision of section 170.6 is to instill public confidence and respect in the courts. The court observed that requiring a litigant to state the reasons for his or her belief that a judge is biased or prejudiced “would compel the litigant to spread the details of his charges of judicial prejudice on the public record.”(Solberg, at p. 199 .) Such a situation, the court feared, “could produce sharp disputes in open court over whether particular judicial behavior is or is not sufficient to demonstrate bias.” (Solberg, at p. 200.) The court “believe[ d] the consequences would be a diminution in public respect for the judicial system, needless friction between judges and the attorneys who appear before them, and further delays in bringing cases to trial.” (Solberg, at p. 200.) (page 6)
  •  Blanket challenges “do not . . . ‘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.” (Solberg, at p. 204.) (page 8)
  • Had the People had the opportunity to challenge the facts supporting Judge King’s “substantial impairment” finding, they might have asked several questions. For example, homicides are not the only types of cases assigned to the long-cause courts; since prosecutors were only papering Judge Goethals in homicide cases, could the case-management problem have been solved by assigning or reassigning non-homicide long-cause cases to Judge Goethals? Alternatively, could the case-management problems have been solved by reassigning Judge Goethals to a regular- i.e., non-long cause – felony court and assigning another judge to the long-cause court. (page 9)
  • The fact that a judge has been assigned to handle certain types of cases should not immunize him or her from being peremptorily challenged pursuant to section 170.6. In other words, a judge’s assignment to a particular case load should not prevent litigants from exercising their right to peremptorily challenge a judge whom they believe to be biased; a right that is “a substantial right which is now part of the system of due process and judicial fair play in this state.” (McCauley, at p. 564.) (page 9)


Factual study findings that show defense filed most of the judge disqualifications
In January 2016, the OCDA conducted research into how 170.6 challenges were exercised countywide between Feb. 24, 2014, and Dec. 3, 2015, the same period of time examined by Judge King in denying the People’s 170.6 motions. The variables included what judges were challenged, what party filed the challenge – an OCDA prosecutor, a criminal defense attorney, or other, what specific attorney filed the challenge, whether the challenge was granted or denied, and what was the principal felony or misdemeanor count in the underlying case. The limitations included basing the research on electronically-filed cases only and excluded civil cases, challenges filed that were then withdrawn, and cases that were not captured due to computer error.

It was found that a total of 847 challenges were filed against superior court judges in the time frame that was under review. Of the 847 peremptory challenges, most were filed by criminal defense attorneys, 501, which may consist of public, alternate, associate defenders, and private attorneys both retained and appointed. In contrast, OCDA prosecutors filed 340. The Anaheim City Attorney filed five and a victim filed one.

A breakdown of all challenges filed against every Orange County superior court judge between Feb. 24, 2014, and Dec. 3, 2015, by either prosecutors or criminal defense attorneys shows that the Honorable Robert R. Fitzgerald, who was sent cases for plea bargains and not to conduct trials, received the most challenges by prosecutors.

A total of 40 judges including the Honorables Donald F. Gaffney, Lance P. Jensen, Stephanie George, Daniel B. McNerney, Kimberly K. Menninger, among others were challenged only by criminal defense attorneys. In contrast, only nine judges were challenged by OCDA prosecutors. It should be noted that Judge Goethals was challenged both by the prosecution and the defense. Even following his ruling recusing the OCDA on People v. Scott Dekraai, prosecutors have consistently litigated their cases in front of Judge Goethals.