Solberg v. Superior Court, S.F. 23449

CourtUnited States State Supreme Court (California)
Writing for the CourtMOSK; Perasso; TOBRINER
Citation19 Cal.3d 182,561 P.2d 1148,137 Cal.Rptr. 460
Docket NumberS.F. 23449,23469
Decision Date22 March 1977
Parties, 561 P.2d 1148 Diana D. SOLBERG et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO et al., Respondents; The PEOPLE, Real Party in Interest. The PEOPLE, Plaintiff and Respondent, v. The MUNICIPAL COURT FOR the SAN FRANCISCO JUDICIAL DISTRICT OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants; Diana D. SOLBERG et al., Real Parties in Interest and Appellants.

Page 460

137 Cal.Rptr. 460
19 Cal.3d 182, 561 P.2d 1148
Diana D. SOLBERG et al., Petitioners,
v.
The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO et al., Respondents;
The PEOPLE, Real Party in Interest.
The PEOPLE, Plaintiff and Respondent,
v.
The MUNICIPAL COURT FOR the SAN FRANCISCO JUDICIAL DISTRICT OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants;
Diana D. SOLBERG et al., Real Parties in Interest and Appellants.
S.F. 23449, 23469.
Supreme Court of California, In Bank.
March 22, 1977.
Rehearing Denied April 20, 1977.

[19 Cal.3d 186]

Page 462

[561 P.2d 1150] Gilbert Eisenberg, Filippelli & Eisenberg and Ruth S. Astle, San Francisco, for petitioners and for real parties in interest and appellants.

Thomas M. O'Connor, City Atty., Burk E. Delventhal, Deputy City Atty., and Michael R. Hallinan, San Francisco, for defendants and appellants.

No appearance for respondents.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Derald E. Granberg and John W. Runde, Deputy Attys. Gen., for real party in interest and for plaintiff and respondent.

Roger S. Hanson, Santa Ana, H. George Taylor, Pomona, Donald M. Solomon, San Francisco, Sheldon Portman, Public Defender (Santa Clara), Keith C. Sorenson, Dist. Atty. (San Mateo), Douglas J. Gray, Deputy Dist. Atty., Herbert M. Rosenthal, Garrett H. Elmore, San Francisco, Irell & Manella, Robert L. Winslow and Peter M. Hoffman, Los Angeles, as amici curiae.

Page 463

MOSK, Justice.

In Johnson v. Superior Court (1958),50 Cal.2d 693, 329 P.2d 5, we held that Code of Civil Procedure section 170.6, which provides for the disqualification of trial judges on motion supported by an affidavit of prejudice, does not violate the doctrine of the separation of [19 Cal.3d 187] powers or impair the independence of the judiciary. In these consolidated proceedings we are called upon to reconsider that decision in light of the experience with the statute during the intervening two decades and as applied here in a criminal context. We have undertaken that review, and conclude that the constitutionality of the statute should be reaffirmed.

Code of Civil Procedure section 170.6 provides in substance that any party or attorney to a civil or criminal action may make an oral or written motion to disqualify the assigned judge, supported by an affidavit that the judge is prejudiced against such party or attorney or the interest thereof so that the affiant cannot or believes he cannot have an impartial trial. As hereinafter appears, there are strict limits on the timing and number of such motions; but if the motion is timely and in proper form, the judge must recuse himself without further proof and the case must be reassigned to another judge.

The facts of these proceedings are not in dispute. On October 9, 1975, a criminal complaint charging Tina Peoples with soliciting an act of prostitution (Pen. Code, § 647, subd. (b)) came before Judge Ollie Marie-Victoire of the San Francisco Municipal Court. Defense counsel filed a motion to dismiss the charge, and asked for a hearing date. Judge Marie-Victoire set the matter to be heard in her own department on November 12, 1975. At that point Deputy District Attorney Edward Rudloff, representing the People, asked to be sworn and made an oral motion to disqualify Judge Marie-Victoire pursuant to Code of Civil Procedure section 170.6. 1 The judge declined to disqualify herself on the ground that the pending matter--i.e., the motion to dismiss the charge--presented the same issues of law and fact that she had adjudicated in similar prosecutions against other defendants a week earlier. Judge Marie-Victoire offered Rudloff the opportunity to challenge her for cause (Code Civ.Proc., § 170, subd. (5)), but he declined.

On the same day criminal complaints charging Diana Solberg, Constance Black, and Javette Rollins with soliciting an act of prostitution also came before Judge Marie-Victoire. In each, defense counsel moved to dismiss; the judge set the matter for hearing in her own department on November 12; Rudloff summarily renewed his motion to disqualify; and the judge summarily denied it.

[19 Cal.3d 188] On the following day (October 10) Rudloff filed a formal written motion under section 170.6 to disqualify Judge Marie-Victoire from hearing the foregoing four pending matters. The motion was supported by his declaration under penalty of perjury substantially in the form prescribed by the statute. 2 Judge Marie-Victoire denied the written motion on the same ground as she had rejected the oral motions.

The People promptly filed a petition on the San Francisco Superior Court for a writ of mandate or prohibition to compel Judge Marie-Victoire to disqualify herself from further proceedings in these actions. 3 The matter was assigned to Judge Claude D. Perasso. Thereupon two of the four de

Page 464

[561 P.2d 1152] fendants in the underlying criminal actions, Diana Solberg and Tina Peoples, appearing as real parties in interest in the writ proceeding, filed a written motion under section 170.6 to disqualify Judge Perasso. The motion was supported by a declaration of their counsel under penalty of perjury similar to that previously filed by the People against Judge Marie-Victoire (fn. 2, Ante). Judge Perasso denied the motion on two grounds hereinafter discussed, and proceeded with the hearing.

Counsel for Judge Marie-Victoire and the municipal court offered to prove, inter alia, that the People's motions to disqualify Judge Marie-Victoire in the criminal actions were 'blanket challenges' motivated by prosecutorial discontent with her prior rulings of law. Judge Perasso denied the offer as immaterial under the statute, and quashed subpoenas issued against the district attorney and his staff for the purpose of eliciting such proof. Counsel for Judge Marie-Victoire and the municipal court then declined to question the timeliness of the People's motions, and Judge Perasso determined that the motions--at least in the written form presented on October 10--complied with the requirements of section 170.6. Accordingly, Judge Perasso rendered judgment ordering that a peremptory writ issue restraining Judge Marie-Victoire from taking any further proceedings in the four actions in question other than to disqualify herself and set the matters for hearing before another judge.

[19 Cal.3d 189] Judge Marie-Victoire an the municipal court appealed from the judgment, and the appeal is now before us as People v. Municipal Court (Solberg), S.F. 23469. In addition, Diana Solberg and Tina Peoples filed a petition for writ of mandate or prohibition in the Court of Appeal to compel Judge Perasso to vacate his order denying their motion to disqualify him; that proceeding is now before us as Solberg v. Superior Court, S.F. 23449, on an alternative writ issued by the Court of Appeal. We begin with the latter proceeding.

Solberg v. Superior Court

Judge Perasso rested his denial of the motion to disqualify him on two grounds. First, he reasoned that in hearing the People's petition for a writ he was acting 'in an appellate capacity,' and hence was exempt from disqualification under section 170.6. The point lacks merit.

While it can be said in common parlance that the writ proceeding brought by the People had the effect of 'reviewing' the challenged order of Judge Marie-Victoire, the proceeding was nevertheless a matter within the original jurisdiction of the superior court. (Cal.Const., art. VI, § 10; Code Civ.Proc., §§ 1085, 1103.) It is therefore within the express terms of section 170.6, which declares that after disqualification no superior court judge shall try 'any civil or criminal action or special proceeding of any kind or character' (subd. (1)). In view of this statutory language it is irrelevant that the Supreme Court and Courts of Appeal, as the Attorney General points out, have concurrent jurisdiction in such matters. The Attorney General also seeks to analogize Judge Perasso's trial of the writ proceeding to the assignment of a judge to the appellate department of the superior court. 4 But the analogy fails, as the appellate department has a limited jurisdiction over certain appeals from municipal and justice courts only. (Cal.Const., art. VI, § 11; Code Civ.Proc., § 77, subd. (g); see generally Whittaker v. Superior Court (1968),68 Cal.2d 357, 66 Cal.Rptr. 710, 438 P.2d 358.)

Judge Perasso's second and principal ground for denying the motion to disqualify him was that it was filed neither by the People as plaintiffs nor by the defendant judge or court, but by the real parties in interest; such parties, he ruled, have no standing to move under section 170.6. The ruling was erroneous. When mandamus or

Page 465

[561 P.2d 1153] prohibition is sought against a court, the judge is ordinarily a neutral party with no [19 Cal.3d 190] interest in the outcome; the litigant designated as the real party in interest is the true adverse party. (See Matter of De Lucca (1905) 146 Cal. 110, 113, 79 P. 853.) He is therefore entitled to oppose the application for the writ (Code Civ.Proc., § 1107; Cal.Rules of Court, rule 56(a)(2)), and if warranted, to file a motion in the writ proceeding to disqualify the assigned judge pursuant to section 170.6. 5

No question is raised as to either the timeliness or the formal sufficiency of the affidavit of disqualification filed by the real parties in interest; and as hereinafter appears, we have concluded that the statute is constitutional. It follows that Judge Perasso had no jurisdiction but to grant the motion and recuse himself. (Code Civ.Proc., § 170.6, subd. (3); see McCartney v. Commission on Judicial Qualifications (1974),12 Cal.3d 512, 116 Cal.Rptr. 260, 526 P.2d 268.) A writ of mandate will therefore lie to compel him to vacate his order denying the motion for disqualification.

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240 practice notes
  • In re Rosenkrantz, No. B151016.
    • United States
    • California Court of Appeals
    • January 18, 2002
    ...of California (2001) 25 Cal.4th 287, 297-298, 105 Cal.Rptr.2d 636, 20 P.3d 533, italics added; see also Solberg v. Superior Court (1977) 19 Cal.3d 182, 191, 137 Cal.Rptr. 460, 561 P.2d 1148.) When faced with an encroachment on the power of the executive, the Supreme Court has observed that ......
  • In re Charlisse C., No. B194568.
    • United States
    • California Court of Appeals
    • April 23, 2007
    ...from perpetuating a specific tactical abuse expressly disapproved by the California Supreme Court. (Solberg v. Superior Court (1977) 19 Cal.3d 182, 203[, 137 Cal.Rptr. 460, 561 P.2d • Ms. Krinsky asked case-specific questions of two now-former Center attorneys between 2002 and 2004. The dec......
  • People v. Weidert
    • United States
    • United States State Supreme Court (California)
    • September 19, 1985
    ...is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.' (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, [137 Cal.Rptr. 460, 561 P.2d 1148].)" (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 348, 158 Cal.Rptr. 350, 5......
  • Delaney v. Superior Court, No. S006866
    • United States
    • United States State Supreme Court (California)
    • May 3, 1990
    ...is thus clear and unambiguous there is no need for construction, and courts should not indulge in it." (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148, italics added.) This rule is deeply rooted in our jurisprudence. (Sturges v. Crowninshield (1819) 17......
  • Request a trial to view additional results
240 cases
  • In re Rosenkrantz, No. B151016.
    • United States
    • California Court of Appeals
    • January 18, 2002
    ...of California (2001) 25 Cal.4th 287, 297-298, 105 Cal.Rptr.2d 636, 20 P.3d 533, italics added; see also Solberg v. Superior Court (1977) 19 Cal.3d 182, 191, 137 Cal.Rptr. 460, 561 P.2d 1148.) When faced with an encroachment on the power of the executive, the Supreme Court has observed that ......
  • In re Charlisse C., No. B194568.
    • United States
    • California Court of Appeals
    • April 23, 2007
    ...from perpetuating a specific tactical abuse expressly disapproved by the California Supreme Court. (Solberg v. Superior Court (1977) 19 Cal.3d 182, 203[, 137 Cal.Rptr. 460, 561 P.2d • Ms. Krinsky asked case-specific questions of two now-former Center attorneys between 2002 and 2004. The dec......
  • People v. Weidert
    • United States
    • United States State Supreme Court (California)
    • September 19, 1985
    ...is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.' (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, [137 Cal.Rptr. 460, 561 P.2d 1148].)" (In re Waters of Long Valley Creek Stream System (1979) 25 Cal.3d 339, 348, 158 Cal.Rptr. 350, 5......
  • Delaney v. Superior Court, No. S006866
    • United States
    • United States State Supreme Court (California)
    • May 3, 1990
    ...is thus clear and unambiguous there is no need for construction, and courts should not indulge in it." (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198, 137 Cal.Rptr. 460, 561 P.2d 1148, italics added.) This rule is deeply rooted in our jurisprudence. (Sturges v. Crowninshield (1819) 17......
  • Request a trial to view additional results

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