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
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
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
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
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
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.”