Johnson v. Superior Court In and For Los Angeles County

Decision Date19 August 1958
Citation329 P.2d 5,50 Cal.2d 693
CourtCalifornia Supreme Court
PartiesLouise M. JOHNSON and Carl Johnson, Petitioners, v. SUPERIOR COURT OF The State of CALIFORNIA, IN AND FOR the COUNTY OF LOS ANGELES et al., Respondents; Harold R. Sherwood, Real Party in Interest. L. A. 24942.

Lowerre & Hollingsworth, George H. Lowerre, III, El Segundo, and Ben C. Duniway, San Francisco, for petitioners.

Garrett H. Elmore, San Francisco, as amicus curiae on behalf of petitioners.

Harold W. Kennedy, County Counsel, and William E. Lamoreaux, Asst. County Counsel, Los Angeles, for respondents.

DeForrest Home and Henry E. Kappler, Los Angeles, for real party in interest.

GIBSON, Chief Justice.

The sole question to be decided in this proceeding is the constitutionality of section 170.6 of the Code of Civil Procedure, which is set forth in full as an appendix to this opinion. This section, enacted in 1957, provides in substance that no judge of a superior, municipal or justice court shall try any civil action or special proceeding when it is established, in the manner set forth in the section, that he is prejudiced against a party or attorney appearing in the action. It further provides that prejudice may be established by an affidavit that the judge is prejudiced against the party or attorney so that the party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge. A party or attorney is not permitted to make more than one such challenge in any one action or special proceeding.

Petitioners are plaintiffs in a malpractice action pending in the Superior Court of Los Angeles County. Upon assignment of the case to Judge A. A. Scott for trial, petitioners moved to disqualify him and filed an affidavit of prejudice pursuant to section 170.6. The motion was heard and denied by Presiding Judge Roy L. Herndon. In this proceeding petitioners seek a writ of mandate to compel the assignment of the case to some judge other than Judge Scott.

In attacking the statute respondents argue that, because it does not require the litigant or his attorney to set forth the reasons or grounds which constitute the basis for the statement in the affidavit that the judge is prejudiced and because there is no provision for a judicial determination of whether the judge is in fact prejudiced, 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 courts.

There is, of course, a presumption in favor of constitutionality, and the invalidity of a legislative act must be clear before it can be declared unconstitutional. Lundberg v. County of Alameda, 46 Cal.2d 644, 652, 298 P.2d 1. Section 170.6 was passed by an overwhelming vote of both houses of the Legislature and approved by the Governor in 1957. The enactment of the statute represented the culmination of many years' effort by the organized bar of this state to obtain legislation which would permit the challenge of a judge for prejudice without an adjudication of disqualification. A statute enacted in 1937, which, as we shall see, differed materially from section 170.6, was held unconstitutional in Austin v. Lambert, 11 Cal.2d 73, 77 P.2d 849, 115 A.L.R. 849. Thereafter four measures similar to section 170.6, except that two of them were applicable to criminal as well as civil cases, were passed by the Legislature but failed to receive executive approval. 1 The history of the section thus shows that the State Bar and the Legislature have long felt that there is a need for such a measure.

The Legislature may adopt reasonable rules and regulations regarding the disqualification of judges (Caminetti v. Pacific Mutual Life Ins. Co., 22 Cal.2d 386, 390, 139 P.2d 930), and it is obvious that prejudice upon the part of a judge may properly be made a ground for disqualification. The declaration in section 170.6 that prejudice against a party or his attorney is the basis of the disqualification constitutes a sufficient legislative designation of the standard to be applied, and, contrary to respondents' contention, it is wholly unnecessary for the Legislature to attempt to list the many conceivable factors which might cause a judge to be prejudiced. It should be noted in this connection that since 1897, section 170 of the Code of Civil Procedure has contained a general provision for disqualification when it appears that a party cannot have a fair trial by reason of the 'prejudice' or 'bias' of the judge. Code Civ.Proc. § 170, subd. 4, as added in 1897, now contained in § 170, subd. 5; see People v. Compton, 123 Cal. 403, 412-413, 56 P. 44.

The Legislature, in our opinion, also acted within its power to adopt reasonable regulations when it provided that, for the limited purposes of section 170.6, prejudice may be established by the filing of an affidavit sworn to by a party or his attorney, without judicial determination of the existence of the fact. It is important, of course, not only that the integrity and fairness of the judiciary be maintained, but also that the business of the courts be conducted in such a manner as will avoid suspicion of unfairness. See Berger v. United States, 255 U.S. 22, 35-36, 41 S.Ct. 230, 65 L.Ed. 481; Haslam v. Morrison, Utah, 190 P.2d 520, 523. Prejudice, being a state of mind, is very difficult to prove, and, when a judge asserts that he is unbiased, courts are naturally reluctant to determine that he is prejudiced. In order to insure confidence in the judiciary and avoid the suspicion which might arise from the belief of a litigant that the judge is biased in a case where it may be difficult or impossible for the litigant to persuade a court that his belief is justified, the Legislature could reasonably conclude that a party should have an opportunity to obtain the disqualification of a judge for prejudice, upon a sworn statement, without being required to establish it as a fact to the satisfaction of a judicial body. Cf. People v. Compton, 123 Cal. 403, 413, 56 P. 44.

The possibility that the section may be abused by parties seeking to delay trial or to obtain a favorable judge was a matter to be balanced by the Legislature against the desirability of the objective of the statute. Moreover, section 170.6 contains safeguards designed to minimize such abuses. It permits only one challenge to each side, requires that the party or his attorney show good faith by declaring under oath that the judge is prejudiced, and provides for timely making of the challenge before trial, for strictly limited granting of continuances, and for reassignment as promptly as possible. We cannot properly assume that there will be a wholesale making of false statements under oath, and the fact that some persons may abuse the section is not a ground for holding the provision to be unconstitutional.

Statutes similar to section 170.6 have been sustained in every state where they were considered by the courts, with the exception of Oklahoma. See State ex rel. Anaconda Copper Min. Co. v. Clancy, 30 Mont. 529, 77 P. 312, 315 et seq.; State ex rel. Beach v. Fifth Judicial District Court, 53 Nev. 444, 5 P.2d 535, 537 et seq.; State ex rel. Clover Valley Lumber Co. v. Sixth Judicial District Court, 58 Nev. 456, 83 P.2d 1031, 1034; State ex rel. Hannah v. Armijo, 38 N.M. 73, 28 P.2d 511, 512 et seq.; Moruzzi v. Federal Life & Cas. Co., 42 N.M. 35, 75 P.2d 320, 115 A.L.R. 407; U'Ren v. Bagley, 118 Or. 77, 245 P. 1074, 1075 et seq., 46 A.L.R. 1173; State ex rel. Bushman v. Vandenberg, 203 Or. 326, 280 P.2d 344, 346 et seq.; Murray v. Thomas, 80 Ariz. 378, 298 P.2d 795, 797; Marsin v. Udall, 78 Ariz. 309, 279 P.2d 721, 724; Howell v. State, 77 Fla. 119, 81 So. 287, 288 et seq.; State v. Hoist, 11 Minn. 325, 126 N.W. 1090, 1091; State v. Thompson, 43 S.D. 425, 180 N.W. 73, 74; State ex rel. Nissen v. Superior Court, 122 Wash. 407, 210 P. 674, 675; State ex rel. Dunham v. Superior Court, 106 Wash. 507, 180 P. 481, 482; Murdica v. State, 22 Wyo. 196, 137 P. 574, 575-576.

The Oklahoma case of Diehl v. Crump, 72 Okl. 108, 5 A.L.R. 1272, 179 P. 4, 6, contains a statement, apparently as an alternative ground for invalidating the statute there involved, that it has been held that a law providing for the disqualification of a judge upon the mere filing of an affidavit of prejudice, without a hearing, is unconstitutional as depriving the court of judicial power. The only case cited in support of the statement, however, is Ex parte N K. Fairbank Co., D.C.Ala., 194 F. 978, and the Fairbank case was impliedly overruled, without discussion of the question of constitutionality, in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481. See discussion of the Berger and Fairbank cases in Austin v. Lambert, 11 Cal.2d 73, 77-78, 77 P.2d 849, 115 A.L.R. 849.

Our conclusion that section 170.6 is not subject to the objections discussed above does not conflict with Austin v. Lambert, 11 Cal.2d 73, 77 P.2d 849, 115 A.L.R. 849, which, as we have seen held unconstitutional a disqualification statute enacted in 1937. That statute differed materially from section 170.6 in that it provided for a 'peremptory challenge' of the judge assigned to hear the case without requiring the person making the challenge to state the ground for his objection or to make a declaration under oath that the ground in fact existed. It was condemned because it placed in the hands of a litigant the power to dislodge 'without reason or for an undisclosed reason' an admittedly qualified judge, the opinion stating that this was an unwarranted and unlawful interference with the constitutional and orderly processes of the courts. 11 Cal.2d at page 79, 77 P.2d at page 853. The opinion distinguished statutes from other jurisdictions which contained an affidavit procedure similar to that prescribed by section 170.6, pointing out that they specified prejudice as a ground...

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