In my previous blog, I provided an overview of the fight between Orange County (California) District Attorney Anthony Rackaukas and judge Thomas Goethias, and later Judge Richard King, against disqualification of judge Thomas Goethias from criminal proceedings brought by DA Rackaukas, where DA Rackaukas used the peremptory disqualification statute where he did not have to claim actual prejudice and could change a judge in his case one time without any explanations, only a "good faith" affidavit alleged belief there is prejudice and there cannot be impartial judicial review with a particular judge presiding over the case.
In California legal jargon, removing a judge from a case using a the peremptory challenge statute is called "papering" the judge.
Another trial judge, Judge Richard King, was assigned to hear the peremptory challenge to judge Thomas Goethias, denied the motion and stated in his opinion:
“the People’s “blanket papering’
of Judge Goethias ensued from his rulings in three cases: rulings in which he
found that prosecutors and police officers had committed misconduct”.
That could have been true, but the statute under which
the prosecutors sought disqualification of Judge Goethias was a peremptory
challenge statute, and the reasons for a motion to disqualify were irrelevant.
Yet, Judge King denied the motion to disqualify
claiming that the motion to disqualify a judge, even one that followed the
peremptory challenge statute, violated the doctrine of Separation of Powers.
It was true that after Judge Goethias disqualified
prosecutors based on misconduct, prosecutors reciprocated by peremptory strikes
of the judge – in accordance with California statutory law.
Nevertheless, when Judge Goethias, an experienced
judge in felony cases, was stricken off “too many” felony cases, Judge King
used the “judicial economy” and “administration of justice” arguments to
disregard the peremptory strike statute and allow Judge Goethias to preside
over cases, because otherwise the court system would have had to do too many
adjustments in reassigning other judges.
Judge King made a statement in his opinion denying to
the Orange County DA yet another disqualification of Judge Goethais that
“[t]o allow a party to manipulate the court into
removing a judge from hearing certain criminal cases - when that judge, in the performance of his judicial
duties, has conducted a hearing which exposed that same party’s misconduct –
not only goes against the very cornerstone of our society: the rule of law, but
would be a concession against judicial independence”.
Yet, in making such a statement, under the
circumstances of the case, Judge King was fighting against an enacted state
peremptory challenge statute and was, thus, himself violating the separation of
powers doctrine, legislating from the bench and refusing to apply an enacted
statute the way it was written, whether the judge agreed with it or not.
Despite the clear statutory procedure in California
for peremptory challenge of a judge that judge King described in his opinion:
· “Filing
of an affidavit or declaration which states that the judge assigned to the case
is prejudiced against:
o
A party;
o
His attorney, or
o
His interest “so that the party or
attorney cannot, or believes that he or she cannot, have a fair and impartial
trial or hearing before the judge…” (King’s decision at p. 20, citing to Code
of Civ. Proc paragraph 170.6(a)(2) of the State of California).
· The
affidavit does not have to show actual prejudice, only a “good faith belief in
prejudice”.
Yet, King, in a parallel with peremptory strikes of
jurors, overturned by the U.S. Supreme Court on defendants’ right to a racially
diverse jury (Batson v Kentucky, 476 U.S. 79, 91 [1986]), tried to claim that
statutory grounds for peremptory strikes of judges are not absolute, even if
the statute says they are, and are subject to constitutional limitations.
Judge King referenced the first California statute, the
former CCP 170.5 which was deemed unconstitutional as an interference by
litigants and attorneys, as well as the legislature, with judicial independence
and “with constitutional and orderly processes of the courts”.
Judge King engaged in a long overview of legislative
history of the California peremptory judicial disqualification statute and
referenced a case with a carved-out judicially created exception to the statute
on the basis of “group” or “racial” bias against the judge – similar to Batson
v Kentucky prohibition on racial bias towards jurors.
Judge King also referenced court decisions in three “sister
states”, the states of Illinois, Arizona and Minnesota, where peremptory
challenges to judges are also allowed by statute, but where courts ruled that
the statutory grounds for judicial disqualifications are not absolute and that “unconstitutional
use of a constitutional statute” may not be allowed.
Judge King then stated that:
“The record here demonstrates the disqualification of
a judge on almost fifty murder cases because he conducted hearings and made
findings of prosecutorial misconduct.
The record also shows that these disqualifications have substantially
disrupted the operations of the court”.
Because of that, Judge King denied the prosecution’s
motion to disqualify Judge Goethais, finding the use of peremptory challenge
statute abusive, unconstitutional and seeking to interfere with independent
discharge of judicial duties.
The top Court of Appeals of the State of California
reversed.
I will address the reversal and Judge King's opposition to that reversal through his attorney Professor Erwin Chemerinsky, in a separate blog. Stay tuned.
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