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Judicial Disqualification in California Self Study Article &
Self Assessment Test presented by Richard E.
Flamm, Esq. Instructions | Read the
Article Pt. 1 - Pt. 2 | Take the Test ---------------------------------------------------------------------- ---------- PART 2 -- Judicial
Disqualification in California Introduction California has adopted a
detailed statutory framework for determining whether a judge should be
disqualified in a particular circumstance. Pursuant to this framework,
two basic methods exist by which a party may seek to disqualify a
California judge: he may either challenge the judge for cause--
pursuant to C.C.P. Secs. 170.1 through 170.5-- or file a peremptory
challenge--pursuant to Sec. 170.6. There are, in addition, many
other California statutes and court rules which deal with
questions pertaining to the disqualification of judges and quasi-judicial
officers in special types of proceedings; as well as a constitutional
provision which provides for disqualification of judges
who have either been indicted or recommended for removal or
retirement by the California Commission on Judicial Performance. Disqualification for Cause In California, the statutory
procedure for determining a contested "for
cause" judicial disqualification motion has been in place since 1927. While,
prior to that time, questions of judicial bias were determined solely
by the challenged judge; in that year the then-operative
disqualification procedure--C.C.P. Sec. 170--was altered in a number of material
respects, including with respect to who was authorized to pass
on the question of judicial disqualification. Since 1927, Sec. 170 has
been amended on more than 20 separate occasions. Notwithstanding
all of those amendments, however--perhaps in part because of them--the
procedural mechanism for moving to disqualify a California
judge for cause has remained "murky". In order to correct this
problem, those provisions of the California Code of Civil Procedure
which deal with issues of judicial disqualification were
substantially overhauled in the early 1980's. Among other things, the
Legislature declared that the determination of a judicial
disqualification motion is not an appealable order, and that such an order may be
reviewed only by a writ of mandate. This process culminated in
the repeal of Secs. 170, 170a and 170.1-- which collectively dealt
with judicial disqualification for bias or cause, and their replacement
by the current "for cause" judicial disqualification
provisions--Secs. 170.1-170.5--which parallel the primary federal judicial
disqualification statute, 28 U.S.C. Sec. 455. While there are a number of
similarities between the California "for cause' disqualification
scheme and Sec. 455, however, there are also some significant differences
between them. For example, while the 1974 amendments to Sec. 455
effectively eliminated the "duty to sit" rule, revised C.C.P. Sec.
170 expressly states that "a judge has the duty to decide any
proceeding in which he or she is not disqualified." C.C.P. Sec. 170.1 C.C.P. Sec. 170.1 enumerates
the specific circumstances under which a California judge may be
disqualified for cause: if he has personal knowledge of disputed
evidentiary facts concerning a proceeding; has served as a lawyer in it or
for one of the parties; has a financial interest in the subject
matter of the proceeding; is related to a party; is related to someone
who is a lawyer for a party; or, for any reason, believes that his
disqualification would further the interests of justice, that
there is a substantial doubt as to his capacity to be impartial, or
that a person aware of all relevant facts might reasonably
entertain a doubt about his ability to be impartial. The previous corresponding
statute--Sec. 170, subdivision (a)(5)-- which was repealed in 1984,
had been construed to require bias in fact. With the enactment of
Sec. 170.1, however, a party seeking to disqualify a California
judge for cause was no longer required to prove that the judge was
actually biased. C.C.P. Sec. 170.2 C.C.P. Sec. 170.2 appears to
be unique among the judicial disqualification provisions
in force in the various states in that it prescribes certain factors
which specifically do not constitute grounds for judicial
disqualification. However, while it can be anticipated that this
provision may become a fertile source of litigation in the future,
there has--as of yet--been little case law interpreting it. C.C.P. Sec. 170.3 C.C.P. Sec. 170.3 provides
the procedure whereby a party may attempt to effect the
disqualification of a judge who should have disqualified himself but
refuses to do so. Pursuant to C.C.P. Sec. 170.3(c)(1), any party may
file a written verified statement setting forth the facts which are
alleged to warrant disqualification of such a judge. Once such a statement has
been filed, the challenged judge has three options. He may--without
conceding his disqualification--file a written statement requesting
that a replacement judge, agreed upon by the parties, sit in his
place; he may file a consent to the disqualification and notify
the presiding judge to appoint a replacement; or he may file
a written verified answer admitting or denying the allegations
contained in the statement of disqualification. Under the procedures
established by subdivisions (c)(5) and (c)(6) of Sec. 170.3, if the
challenged judge elects to contest the statement of disqualification, the
matter must be resolved by another judge agreed upon by the parties;
or, if they are unable to agree, by a judge selected by the
Chairperson of the Judicial Council. In addition to prescribing
the procedure for handling "for cause" disqualification motions,
Sec. 170.3 also deals with the question of when a party's right to seek
judicial disqualification "for cause" may be waived; and further
provides that the court's determination of the disqualification issue
may be reviewed only by a timely writ of mandate from the appropriate
court of appeal. C.C.P. Sec. 170.3 has
generated some confusion, however, because it is not entirely clear
whether its provisions are intended to apply to "for cause"
motions only, or if they are also intended to supply the procedural mechanism for
appealing peremptory disqualification motions made pursuant to C.C.P.
Sec. 170.6. C.C.P. Sec. 170.4 C.C.P. Sec. 170.4 prescribes
what actions a California judge may take once he has been
disqualified. Pursuant to this provision, a disqualified judge is to
take no further action in the proceeding, except as specifically
provided in Sec. 170.4. In other words, unless one or more of the
exceptions enumerated in C.C.P. Sec. 170.4 apply, a disqualified judge may
take no further action in the case. C.C.P. Sec. 170.4 also
specifies the actions which a challenged judge may take when a statement of
disqualification which has been filed by a party is deemed to be
either untimely or legally insufficient. In such a circumstance, the
judge may order that the statement be stricken from the court's
files; however, where the judge neither strikes the statement nor
files an answer within the applicable period of time, he is
ordinarily deemed to have consented to his disqualification, regardless
of whether the statement of disqualification would have
been sufficient to warrant his removal from the case. Peremptory Disqualification
in California Prior to 1982, judicial
disqualification was permitted in California only when the moving party
filed a statement of disqualification which was both timely and
legally sufficient. If the statement was either untimely or
insufficient on its face, the challenged judge could either ignore the
statement or strike it from the court's files. However, a wholesale
revision of California's judicial disqualification scheme was
undertaken in 1982. At that time, the state Legislature enacted
C.C.P. Sec. 170.6, which guarantees to litigants the
"extraordinary" right to disqualify a judge, or referee, without any showing
of cause whatsoever. While the California
Legislature loosened the requirements for seeking peremptory
disqualification in 1982, it retained the requirement that the
challenge be filed in a "timely" manner. Exactly what constitutes a timely
peremptory disqualification motion is not always easy to discern,
however. This is so because while--as a general rule--a Sec. 170.6
challenge is permitted at any time before the commencement of a trial
or hearing on a substantive matter, that general rule is subject to
three exceptions--namely the "10 day/5 day" rule, the
"master calendar" rule, and the "all purpose assignment" rule. Thus,
in California, before it can be determined whether a Sec. 170.6
challenge was made in a timely fashion, it must first be determined whether
any of these exceptions to the general rule apply. This seemingly facile
determination has been the fount of more than a little controversy. Indeed,
it is probably no exaggeration to say that, since Sec. 170.6 was
amended in 1982, California courts have devoted more time and energy
to analyzing questions of whether peremptory challenges have
been lodged in a timely fashion than they have to any other issue
pertaining to the general subject of judicial disqualification. Section Sec. 170.6 may be
invoked in either a civil or criminal action. There is, however,
an inherent problem in applying Sec. 170.6 to criminal proceedings
because of the difficulty in determining the point at which there is a
known trial judge. In fact, California appellate courts are not
even in agreement as to whether or not an assignment to a department
is an assignment to a known judge. While Sec. 170.6
theoretically does not entitle a litigant to select the judge whom he wishes to
appear before--but only to disqualify a judge whom he genuinely
believes to be biased,--a party who moves for disqualification under Sec.
170.6 need not provide the court with a factual basis for its belief
that the judge is biased. In fact, where it does--and
where the application is not clearly denominated as one seeking
peremptory disqualification under that provision--the court may
properly conclude that the motion is one seeking disqualification for
cause pursuant to C.C.P. Sec. 170.3 subd. (c), rather than a
peremptory challenge under Sec. 170.6. Since Sec. 170.6 provides
for judicial disqualification without any proof of actual bias, once a
Sec. 170.6 motion has been filed-- together with a declaration
under penalty of perjury or an oral statement under oath
indicating that the judge is so biased that the moving party or her attorney
believes she cannot have a fair and impartial trial or hearing
in the matter--the challenged judge ordinarily has no choice but
to recuse himself forthwith. Thus, in California, the
peremptory challenge right is "automatic" in the sense that a good faith
belief in the judge's bias is alone sufficient to insure that
the challenged judge will no longer be permitted to sit. In fact,
some courts have indicated that when a party properly makes a
proper motion under Sec. 170.6, the challenged judge immediately loses
jurisdiction, such that any action he thereafter takes in the
matter is deemed to be null and void. However, a party's right to
disqualify a judge under Sec. 170.6 must be exercised in a timely
fashion, and it is well-settled that the challenged judge may himself
decide whether the peremptory challenge is timely. In addition, even
though motions to disqualify made pursuant to Sec. 170.6 are
generally referred to as "peremptory challenges," Sec. 170.6
does require that the movant at least allege that the challenged judge is
biased--a fact that has persuaded at least one court to decline
to refer to a motion made pursuant to this provision as a peremptory
challenge. |