Appeals court upholds Orange County's disqualifying of judge

By Seth Sandronsky | Nov 15, 2016

SAN DIEGO – The California Fourth Circuit Court of Appeals, following state Supreme Court precedent, ruled this summer  that the Orange County District Attorney (OCDA) affirmed its right to peremptory challenges that removed Superior Court Judge Thomas Goethals from dozens of cases.

Such a judicial challenge is known as “papering,” which some in legal circles view as a retaliatory tactic. The OCDA denies that.

The majority opinion of the appeals court said that for “roughly 18 months after February 24, 2014, Judge Goethals was assigned 58 murder cases and the district attorney disqualified him 55 times under section 170.6.” By contrast, “in more than three years before February 24, 2014, Judge Goethals was assigned 35 murder cases and the district attorney disqualified him just once under section 170.6.”

The OCDA "maintains that there has never been 'blanket papering' of any judicial officer,” the office said in a July 25 statement. “Any exercise of peremptory challenge made by any member of the OCDA has been the individual prosecutor’s decision to do what is in the best interest of the people, public safety and crime victims.”

The OCDA’s increase of peremptory challenges to Goethals, who had been a prosecutor with years of experience as a criminal trial judge, began in March 2014 after he recused Orange County District Attorney Tony Rackauckas in a high-profile capital case involving his office, the sheriff’s department and jailhouse informants. Goethals reassigned the case to the state attorney general.

State law allows the OCDA’s disqualifying of Goethals under the California Code of Civil Procedures section 170.6. That statute provides an opportunity for a litigant, either defendant or plaintiff, to remove a judge from a case with no proof of bias and prejudice.

The appeals court  did express exasperation with the 170.6 statute. “As courts work to keep doors open and to provide timely and meaningful access to justice to the public, the extraordinary abuse of section 170.6 is a barrier to justice and its cost to a court should be reconsidered,” Justice Kathleen O’Leary wrote in the majority opinion.

The statute of 170.6 is fairly unusual, David Levine, a professor at the University of California Hastings College of the Law, told the Northern California Record.  

“In most situations if you want to disqualify a judge, you have to provide reasons in a hearing," Levine said. "A judicial determination is based on a justification.”

This is not what happens in the Golden State, though.

The OCDA conducted research on 170.6 challenges county-wide from Feb. 24, 2014 to Dec. 3, 2015, (electronically filed cases only). According to an OCDA news release, “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.”

In the meantime, an alteration of 170.6, as written and interpreted, will likely come from the California Legislature (which adjourned on Aug. 31 and returns on Dec. 1) and not the courts, Levine said.

In the California Legislature, Assembly Bill 1894 amended 170.6 in the 2009-10 session. AB 1894 “Extends, for civil cases only, the time period for moving to disqualify a judge for prejudice from 10 to 15 days and requires the party challenging the judge to notify all other parties not later than five days after making the motion.”

What are the prospects for changing 170.6 away from the state Capitol?

“The State Bar of California mainly licenses and disciplines lawyers and has not taken a position on this,” Laura Ernde, a spokeswoman for the regulatory agency, told the Northern California Record.

Asked the same question about 170.6, Jennifer Jacobs, spokeswoman for the California District Attorneys Association, told the Northern California Record: “The CDAA does not comment on cases involving the district attorneys in our organization.”


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California Fourth Circuit Court of Appeals California Supreme Court University of California Hastings College of the Law

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