Judicial Disqualification in California
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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.