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Court of Appeal, First District, Division 4, California.

Diana D. SOLBERG and Tina Cathleen Peoples, Petitioners, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF SAN FRANCISCO and Judge Claude D. Perasso, Respondents; PEOPLE of the State of California, Real Parties in Interest.

Civ. 37987.

Decided: March 23, 1976

Ruth S. Astle, San Francisco, for Diana D. Solberg. Gilbert Eisenberg, Filippelli & Eisenberg, San Francisco, for Tina Cathleen Peoples. Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Geranberg, John W. Runde, Deputy Attys. Gen., San Francisco, for real parties in interest.

Petitioners seek a writ of mandate to compel Hon. Claude D. Perasso, judge of the San Francisco Superior Court, to withdraw from participation in a cause pursuant to petitioners' challenge to him under Code of Civil Procedure section 170.6.

The District Attorney for the City and County of San Francisco had filed criminal complaints charging petitioners Diana Solberg and Tina Peoples, and other women, with soliciting for prostitution. The cases came before Hon. Ollie Marie-Victorier, judge of the San Francisco Municipal Court, for a hearing on petitioners' motion to dismiss. The prosecutor immediately moved to disqualify Judge Marie-Victoire under Code of Civil Procedure section 170.6, but the judge denied the motions, stating that since ‘the same substantial issues of fact’ present in these cases had been raised in similar cases previously before her, the People were not entitled to disqualify her under section 170.6.

The People then petitioned the San Francisco Superior Court for a writ to compel Judge Marie-Victoire to honor the challenge. Before the superior court could hear the matter, petitioners challenged under section 170.6 Hon. Claude D. Perasso, the judge before whom the petition was pending. The judge rejected the challenge, and ultimately rendered a judgment directing issuance of a writ to restrain Judge Marie-Victoire from cases in question other than to submit to the challenge and transfer the pending misdemeanor cases to another department of the municipal court.1

In the present proceeding it is contended by petitioners that Judge Perasso's actions after the challenge to him were void as being in excess of jurisdiction. Judge Perasso stated that the challenge against him was ineffective because section 170.6 does not apply to appellate judges and because, in his view, the real parties in interest (the present petitioners) did not have standing to exercise a challenge. Section 170.6 states: ‘No judge . . . of any superior . . . court . . . shall try any civil or criminal action or special proceeding of any kind or character [once challenged pursuant thereto].’ A proceeding for writ of mandate or prohibition is an original proceeding in the superior court; it falls within the scope of the statute. The Attorney General attempts to analogize Judge Perasso's position in the prohibition proceeding to that of a judge in the appellate department of the superior court, citing Code of Civil Procedure section 170.7, which states: ‘Section 170.6 does not apply to a judge designated or assigned to serve on the appellate department of a superior court in his capacity as a judge of such department.’ This analogy is not valid; the appellate department of a superior court has jurisdiction only of certain appeals from municipal and justice courts. (Code Civ.Proc., § 77, subd. (g).) Judge Perasso was not acting in the appellate department; he was presiding in a superior court proceeding in which there was a ‘contested issue of law or fact’ (Code Civ.Proc., § 170.6); therefore, section 170.6 was applicable.

The assertion of the judge that petitioners, as real parties in interest, lacked standing to exercise a challenge against him is also incorrect. ‘[I]f certiorari, prohibition or mandamus is sought against a court, the respondent judge, as in an appeal from a judgment, is a neutral party in the controversy between the plaintiff and defendant in the main action. The adverse party in that action is the real party in interest, and he should have both the opportunity and the duty to oppose the application for two writ, just as he would defend an appeal from the court's judgment or order. [¶] Under [Code Civ.Proc., § 1107] the real party in adverse interest, though not joined as a party, must be named, to entitled to notice, and has the right to be heard.’ (5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, § 132, p. 3908.)

The Attorney General also argues that ‘the superior court correctly denied the disqualification motions in this case because the only matter for decision before it was purely one of law, namely, determining the correctness of the lower court's ruling. No issue of fact was presented to the superior court.’ This contention is unsound; section 170.6 provides for disqualification in a proceeding in which there is ‘a contested issue of law or fact.’ (Emphasis added.)

A question remains as to whether Code of Civil Procedure section 170.6 is valid. In 1937, the Legislature enacted section 170.5 of the Code of Civil Procedure (States.1937, ch. 507, p. 1496), requiring the presiding judge of a superior or municipal court to assign another judge to hear a cause when a party to the cause filed a peremptory challenge of the judge assigned to hear the cause. The California Supreme Court held that section 170.5 was an unlawful interference by the Legislature with the process of the courts, in that the statute violated the constitutional requirement of separation of powers of the three branches of government. (Austin v. Lambert (1938) 11 Cal.2d 73, 74–75, 79, 77 P.2d 849.) Then, in 1957, the Legislature enacted section 170.6 of the Code of Civil Procedure to fulfill the goal of the unconstitutional section 170.5. (Johnson v. Superior Court (1958) 50 Cal.2d 693, 696, 329 P.2d 5.) The new statute (which applied only to civil cases) provided that no judge could function when it was established by an affidavit of a party that the judge was prejudiced against the party. (Id., p. 701, 329 P.2d 5.) In Johnson v. Superior Court, the petitioners challenged the constitutionality of section 170.6, urging that ‘the statute makes an unconstitutional delegation of legislative and judicial powers to litigants and their attorneys and is an unwarranted interference with the powers of the court.’ (Id., p. 696, 329 P.2d p. 7.)

The Supreme Court upheld the constitutionality of section 170.6. It reasoned as follows: Prejudice by a judge against a party or his attorney is a valid basis for disqualification of the judge. (See Code Civ.Proc., § 170, subd. 5.) In section 170.6, the Legislature adopted a method by which prejudice against a party or his attorney could be efficiently established. Therefore, section 170.6, unlike section 170.5, merely provided a new procedure for asserting one of the traditional grounds for disqualification. The Legislature's action—adopting ‘reasonable regulations'—was within its power and not an unwarranted interference with the judiciary. (See Johnson v. Superior Court, supra, 50 Cal.2d at pp. 696–697, 329 P.2d 5.) With this reasoning, the court in Johnson distinguished Austin v. Lambert, supra, pointing out that section 170.5, which was held invalid in Austin, did not specify that disqualification was to be based on prejudice; neither did it require a showing in the from of a statement under oath.

The reasoning in Johnson, in our view, is based on a fiction: i. e., that the filing of the affidavit establishes that the judge is prejudiced. In actuality, the procedure established in section 170.6 is widely used to disqualify a judge for any reason—whether or not it involves prejudice on the part of the judge. It is notoriously used for judge-shopping and, particularly in the one-judge court, for delay. As was explained of the bill which became section 170.6,' ‘[t]he theory of the proposed law . . . is that one change of judges is warranted when a party or his attorney makes an affidavit in the form required.’ (Fourth Progress Report to the Legislature by the Senate Interim Judiciary Committee (1955–1957) p. 103.) Section 170.6 essentially gives a party one peremptory challenge of a judge; this is the same result condemned in Anustin v. Lambert.

In contrasting section 170.5 with statutes from other jurisdictions, the court in Austin singled out the federal provision. (Austin v. Lambert, supra, 11 Cal.2d at pp. 77–78, 77 P.2d 849.) Under federal law, a trial judge may be disqualified by an affidavit which states that the judge is biased against a party. The affidavit, however, must ‘state the facts and the reasons for the belief that bias or prejudice exists, . . .’ (28 U.S.C., § 144.) The statute has been interpreted as requiring the judge to assume the truth of the facts stated in the affidavit, but allowing him to judge whether the facts are not frivolous and whether they support the charge of bias. (Berger v. United States (1921) 255 U.S. 22, 33–34, 41 S.Ct. 230, 65 L.Ed. 481, 485–485; see Austin v. Lambert, supra, 11 Cal.2d at pp. 77–78, 77 P.2d 849.) By requiring the affidavit to state facts, federal law, unlike section 170.6, susbtantially connects the disqualification process with possible prejudice by the judge.

If we were free to determine the constitutionality of Code of Civil Procedure section 170.6 as applied to civil cases, we would hold, on the authority of Austin v. Lambert, supra, that the statute is invalid as an ‘unwarranted and unlawful interference with the constitutional and orderly processes of the courts.’ (11 Cal.2d at p. 79, 77 P.2d at p. 853.) But we are bound by the contrary holding in Johnson v. Superior Court, supra. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

A different and more serious problem exists in regard to criminal cases, including writs used to regulate the criminal business of the lower courts. At the time Johnson was written, section 170.6 applied only in civil cases. In 1959, the words ‘or criminal’ were added to section 170.6, subdivision (1). The reasoning of the Johnson court, that the party's affidavit establishes the judge's prejudice, appears even more fictional in the context of a criminal prosecution. In all criminal cases the plaintiff and its attorney remain constant: the People of the State of California, represented by the district attorney. While each criminal prosecution is against a different defendant, most defendants are represented by the public defender. The nature of the parties and the counsel in a criminal action are thus profoundly different from those of a civil action, where the parties and their attorneys vary with each case, preventing any one plaintiff or defendant from exercising the section 170.6 challenge with the regularity which is seen in criminal cases.

The case before us is a vivid example of the abuse of the ‘limited privilege’ conferred on litigants by the provisions of section 170.6. (See Pappa v. Superior Court(1960) 54 Cal.2d 350, 355, 5 Cal.Rptr. 703, 355 P.2d 311.) If appears that Judge Marie-Victoire has sometimes dismissed charges against women for soliciting for prostitution (Pen.Code, § 647, subd. (b)), when the prospective customer has not been arrested with the prostitute, reasoning that such enforcement of section 647, subdivision (b), unconstitutionally discriminates against women. These dismissals apparently were not acceptable to the prosecutor; but rather than test the propriety of the judge's ruling by taking an appeal, the prosecutor apparently chose simply to remove the judge from participation in other such cases.

The basis of these challenges does not appear to be the ‘prejudice’ of Judge Marie-Victoire against the People, the district attorney's office, or any particular deputy district attorney. The objection is apparently based on a disagreement with the judge's interpretation of the constitutionality of a statute or its enforcement. A judge's opinion, interpretation, attitude and philosophy on legal matters cannot be a basis for prejudice against a ‘party or attorney or the interest of such party or attorney so that such party or attorney cannot or believes he cannot have a fair and impartial trial or hearing before such judge.’ (Code Civ.Proc., § 170.6, subd. (2).) The actions taken by a judge with respect to matters of law are reviewable, and correctible if necessary, on appeal. The wholesale challenge by the People of a particular judge, on all cases of a particular type, effectively prevented her from hearing any cases of that type and is an unwarranted interference with the powers of the court which was neither contemplated by the Johnson court nor authorized by the language of that opinion. The fiction that the deputy district attorney's affidavit established that the judge was prejudiced against either the People or the deputy is irrational. Similarly spurious is the claim of the present petitioners that their affidavits establish that Judge Perasso is prejudiced against them.

This court had knowledge, from the flow of criminal matters which comes to it from the trial courts in the First Appellate District, that section 170.6 has been used by district attorney's offices and by the criminal defense bar effectively to remove from their assignments in criminal departments of the trial courts judges who have lost the favor of one side or the other. By repeatedly challenging a judge who is disfavored, a prosecutor's office or a public defender's office can in effect compel the removal of that judge from the criminal courts. Because the statute has created this abuse, which flows from the fact that appearances in criminal cases are concentrated in the hands of two offices, we hold that the amendment extending the peremptory challenge of section 170.6 to criminal cases is inconsistent with article III, section 3,2 and article VI, section 1,3 of the Constitution of California. We recognize, but respectfully decline to follow, People v. Rodgers (1975) 47 Cal.App.3d 992, 121 Cal.Rptr. 346, and Journey v. Superior Court (1975) 47 Cal.App.3d 408, 120 Cal.Rptr. 897, in which the Court of Appeal for the Fourth Appellate District has held that section 170.6 is properly applied in criminal cases. Those decisions did not consider the special cirmumstances which in criminal cases make section 170.6 so devastating to the independence of the judicial branch of government. (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 667, p. 4580.)

Because the statute is invalid as applied in this proceeding, Judge Perasso did not err when he rejected the challenge. Although the reasons stated by the judge for rejecting the challenge were not sound, his action is to be upheld if it is correct on another basis. (Rinaldo v. Superior Court (1936) 15 Cal.App.2d 585, 595, 59 P.2d 868.) The challenge to Judge Marie-Victoire will be dealt with in the above-mentioned appeal from the judgment for issuance of a writ. (See fn. 1, ante.)

The alternative writ is discharged and the petition is denied.


1.  An appeal has been taken from the judgment for issuance of the writ; briefing in that appeal has not been completed. (People v. Municipal Court, 1/Civil 38127.)

2.  Article III, section 3: ‘The powers of state government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution.’

FN3. Article VI, section 1: ‘The judicial power of this State is vested in the Supreme Court, courts af appeal, superior courts, municipal courts, and justice courts. All except justice courts are courts of record.’.  FN3. Article VI, section 1: ‘The judicial power of this State is vested in the Supreme Court, courts af appeal, superior courts, municipal courts, and justice courts. All except justice courts are courts of record.’

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., and RATTIGAN, J., concur.

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