Filed 7/25/16



                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


THE PEOPLE,

    Petitioner,

        v.                                              G052932

THE SUPERIOR COURT OF ORANGE                            (Super. Ct. No. 14ZF0338)
COUNTY,
                                                        OPINION
    Respondent;

RITO TEJEDA,

    Real Party in Interest.


                  Original proceedings; petition for a writ of mandate/prohibition to
challenge an order of the Superior Court of Orange County, Richard M. King, Judge.
Petition granted.
                  Tony Rackauckas, District Attorney, Stephan Sauer and Brian F.
Fitzpatrick, Deputy District Attorneys, for Petitioner.
                  Schonbrun Seplow Harris & Hoffman and Paul L. Hoffman; Erwin
Chemerinsky for Respondent.
                  Sharon Petrosino, Public Defender, and David Dworakowski, Assistant
Public Defender, for Real Party in Interest.
              Nearly 40 years ago, our Supreme Court reaffirmed “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
                                                       1
powers or impair the independence of the judiciary.” (Solberg v. Superior Court (1977)
19 Cal.3d 182, 186-187 (Solberg).) It did so after considering “experience with the
statute [in the preceding] decades and as applied . . . in a criminal context.” (Id. at p.
187.) The Solberg court reasoned, “to the extent that abuses persist in the utilization of
section 170.6 they do not, in our judgment, ‘substantially impair’ or ‘practically defeat’
the exercise of the constitutional jurisdiction of the trial courts. Rather, it may be helpful
to view them as a relatively inconsequential price to be paid for the efficient and discreet
procedure provided in section 170.6. The statute thus remains a reasonable—and hence
valid—accommodation of the competing interests of bench, bar, and public on the subject
of judicial disqualification. We do not doubt that should future adjustments to this
sensitive balance become necessary or desirable, the Legislature will act with due regard
for the rights of all concerned.” (Solberg, supra, 19 Cal.3d at p. 204.)
              Although we question the wisdom of the Solberg holding in light of the
complexities of modern court administration, we are bound to follow Supreme Court
authority. For reasons we explain anon, we urge the Supreme Court to revisit the issue of
blanket papering to determine whether the impact of an abusive use of Code of Civil
Procedure section 170.6, such as demonstrated in this record, can be viewed as
inconsequential on a trial court in the performance of its duty to administer justice.
              No fundamental adjustments to this balance have been made by either the
Legislature or the Supreme Court in the ensuing 39 years. Respondent Superior Court of
Orange County (respondent court), however, refused to grant a section 170.6 motion filed

1
             All further statutory references are to the Code of Civil Procedure, unless
otherwise indicated.


                                               2
on behalf of petitioner, the People of the State of California, because the Orange County
District Attorney (district attorney) invoked an improper blanket challenge to a particular
judge that substantially disrupted the respondent court’s operations. As interpreted by
respondent court, Solberg did not foreclose a separation of powers challenge to the
executive branch’s apparent abuse of section 170.6 under the circumstances of this case.
              In our view, however, Solberg anticipated circumstances very similar to
those faced here. Rightly or wrongly, the Solberg court concluded the peremptory
challenge at issue would not constitute a separation of powers violation. Because we are
bound by the reasoning in Solberg, we must grant the petition for writ of mandate.
                                PROCEDURAL HISTORY
              In December 2014, real party in interest Rito Tejeda was charged with
murder. (Pen. Code, § 187, subd. (a).) On December 3, 2015, respondent court assigned
Tejeda’s case to Judge Thomas Goethals for all purposes and set the matter for a pre-trial
hearing in Judge Goethals’ courtroom. That same day, petitioner moved to disqualify
Judge Goethals pursuant to section 170.6. The motion was supported by a declaration
executed under penalty of perjury by an attorney with the district attorney’s office. The
declaration represented that Judge Goethals “is prejudiced against the party or the party’s
attorney, or the interest of the party or party’s attorney, such that the declarant cannot, or
believes that he/she cannot, have a fair and impartial trial or hearing before the judicial
officer.”
              Later that day, respondent court denied the motion to disqualify Judge
Goethals, “without prejudice to the People’s or the defendant’s right to seek
reconsideration of this order, should they choose to do so.” Notice of entry of the order
was served by mail.
              On December 17, 2015, petitioner sought writ relief from this court. (§
170.3, subd. (d).) This court issued an order to show cause on February 11, 2016, and
subsequently set the matter for oral argument.

                                               3
            FACTUAL RECORD DEVELOPED BY RESPONDENT COURT
               The factual record in this matter is unusual. Petitioner did not submit
evidence (other than the standard form § 170.6 declaration) with its motion. Tejeda did
not oppose the motion, with evidence or otherwise. Instead, respondent court took
judicial notice of facts and events outside the scope of this particular case in supporting
its conclusions (1) the district attorney’s office was engaged in improper “‘blanket
papering’” of Judge Goethals in murder cases, and (2) the effect of the blanket challenge
was to “substantially disrupt[] the orderly administration of criminal justice in Orange
County.” We summarize the lengthy recitation of facts from respondent court’s order.
               Judge Goethals practiced criminal law for more than 20 years, both as a
member of the district attorney’s office and as a private attorney representing criminal
defendants. Since his appointment to the bench in 2003, Judge Goethals has presided
over exclusively criminal matters, including “long cause cases” (the most complicated
murder cases). “Judge Goethals has prosecuted capital cases, defended capital cases, and
. . . presided over capital cases . . . .”
               In January 2012, Judge Goethals was assigned the long cause case of
People v. Dekraai, Superior Court Orange County (2012) No. 12ZF0128. In January
2013, Judge Goethals granted a defense discovery request pertaining to an inmate
informant to whom defendant Dekraai had allegedly made incriminating statements.
After receiving discovery materials, the defense filed three motions in January and
February 2014 (to dismiss the death penalty allegations, to disqualify the district
attorney’s office based on an alleged conflict of interest, and to exclude from evidence
any statements made by Dekraai to the informant). These motions were based on defense
allegations that members of the district attorney’s office and law enforcement officers
had engaged in misconduct (perjury, subornation of perjury, intentional violation of
criminal defendants’ constitutional rights, and obstruction of justice) in connection with



                                              4
the use of informants. Judge Goethals refused the prosecution’s request to deny the
motions without an evidentiary hearing.
              Judge Goethals began hearing evidence on all three motions on March 18,
2014. On August 4, 2014, Judge Goethals made factual findings that (1) law
enforcement officers intentionally moved informants at the jail in an attempt to obtain
incriminating statements, and (2) prosecutors had committed negligent violations of
Brady v. Maryland (1963) 373 U.S. 83. Judge Goethals ruled that Dekraai’s statements
                                                                         2
should be excluded from evidence, but denied the other two motions. However, after
new evidence was presented by the defense pertaining to the existence of a computerized
system for handling informants, Judge Goethals granted the motion to disqualify the
district attorney’s office on March 12, 2015.
              In the wake of these rulings, the district attorney’s use of peremptory
challenges against Judge Goethals changed dramatically. The raw numbers are stark.
“For over three years, from December 7, 2010 through February 24, 2014, Judge
Goethals was assigned 35 murder cases for trial and was disqualified once by the People.
From February 25, 2014 through September, 2015, a period of [18] months, Judge
Goethals was assigned 49 murder cases for trial and was disqualified 46 times by the
People.” (Emphasis omitted.) The pattern continued with this case and others assigned
to Judge Goethals in December 2015.
              Respondent court’s order then turned to the consequences of the district
attorney’s repeated disqualification of Judge Goethals. “Six months after the People
began disqualifying Judge Goethals, the negative impact became readily apparent: the
four other long cause judges had significantly more murder cases than Judge Goethals.
This raised concerns because . . . Penal Code section 1050 requires the judiciary to have
courts available for trial at the earliest time possible. Furthermore, . . . the purpose of
2
              In two other cases, Judge Goethals found Brady violations and disqualified
one specific deputy district attorney by rulings announced in February and March 2014.

                                                5
having a long cause judge—one with a low-enough caseload to allow a seasoned judge to
give sufficient time to a murder trial—was being defeated.”
              Respondent court’s multiple efforts to reassign murder cases to Judge
Goethals were all rebuffed by section 170.6 challenges from the district attorney’s office.
“By April, 2015, [respondent court] was in a crisis. New murder cases were being added
to its inventory, which included unresolved murder cases. In addition, a backlog of
hundreds of other felony cases was becoming a significant problem. Short cause judges
were unavailable to try the shorter felony cases because they were presiding over two-to-
three-week murder trials. To solve this problem, long cause judges were assigned short
cause cases, taking away the time necessary to be devoted to long cause murder cases.”
              Assignments were shuffled between the various judicial officers at
respondent court, in the hope that the blanket challenge phenomenon would be
temporary. But it continued unabated through the autumn of 2015.
              “[T]he effect of the People’s ‘blanket’ disqualification of Judge Goethals
has caused murder cases and other felony cases to languish unnecessarily. It has caused
strain in misdemeanor operations. As a result, the court’s responsibility to ensure the
orderly administration of justice has been severely impacted.”
              The court observed that it could simply reassign Judge Goethals, but
declined to do so: “The very thought of this option is offensive. To 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.”
(Emphasis omitted.)




                                             6
                                         DISCUSSION
Peremptory Challenges Under Section 170.6
                 “[S]ection 170.6 provides that no superior court judge shall try any civil or
criminal action involving a contested issue of law or fact when it is established that the
judge is prejudiced against any party or attorney appearing in the action.” (The Home
Ins. Co. v. Superior Court (2005) 34 Cal.4th 1025, 1031 (Home Ins. Co.); see § 170.6,
subd. (a)(1).) Of course, “actual prejudice is not a prerequisite to invoking the statute.”
(Solberg, supra, 19 Cal.3d at p. 193.) Instead, section 170.6 allows for the
disqualification of judges based upon the mere “‘belief of a litigant’ that he cannot have a
fair trial before the assigned judge.” (Solberg, supra, 19 Cal.3d at p. 193; see § 170.6,
subd. (a)(2).)
                 Peremptory challenges under section 170.6 “are presented in the form of a
motion, but they fall outside the usual law and motion procedural rules, and are not [in
the typical case] subject to a judicial hearing.” (Frisk v. Superior Court (2011) 200
Cal.App.4th 402, 408.) Within its circumscribed limits, section 170.6 authorizes parties
(or their attorneys), rather than courts, to unilaterally decide whether a judge is
“prejudiced.” (Home Ins. Co., supra, 34 Cal.4th at p. 1032 [section 170.6 permits party
to obtain disqualification of judge for prejudice based solely upon sworn statement
without having to establish prejudice as matter of fact to satisfaction of court].) Courts
must honor procedurally sufficient, timely presented section 170.6 motions. (§ 170.6,
subd. (a)(4) [“If the motion is duly presented, and the affidavit of declaration . . . is duly
filed . . . , thereupon and without any further act or proof, the judge supervising the
master calendar . . . shall assign some other judge . . . to try the cause or hear the
matter”]; Stephens v. Superior Court (2002) 96 Cal.App.4th 54, 59.)
                 The atypical power conferred upon parties (and their attorneys) by section
170.6 is not “an unconstitutional delegation of legislative and judicial powers to litigants
and their attorneys”; nor is it “an unwarranted interference with the powers of the courts.”

                                                7
(Johnson v. Superior Court (1958) 50 Cal.2d 693, 696 (Johnson) [affirming facial
constitutionality of § 170.6, which applied only to civil cases at the time].)
Appellate Court Review of Order Denying Peremptory Challenge
               “An order denying a peremptory challenge is not an appealable order and
may be reviewed only by way of a petition for writ of mandate.” (Daniel V. v. Superior
Court (2006) 139 Cal.App.4th 28, 39; see § 170.3, subd. (d).) Hence, there is no
adequate remedy at law for rejected section 170.6 motions—filing a writ petition is “the
exclusive means of appellate review of an unsuccessful peremptory challenge motion.”
(People v. Hull (1991) 1 Cal.4th 266, 276; see § 1086 [writ of mandate appropriate
“where there is not a plain, speedy, and adequate remedy, in the ordinary course of
law”].) Even assuming petitioner is required to establish irreparable harm in bringing this
                         3
statutory writ petition, such harm is obvious in the context of judicial disqualification.
(§ 170.6, subd. (a)(1) [“A judge . . . shall not try a . . . criminal action . . . of any kind . . .
when it is established as provided in this section that the judge . . . is prejudiced”].) As
explained above, a party can disqualify a judge by executing a sworn statement indicating
a belief that the party cannot have a fair trial before the assigned judge. Section 170.6
would ring hollow if the moving party were required to prove in a writ petition that the

3
                “Some courts may be more inclined to grant a statutory writ without
requiring a factual showing of ‘inadequate legal remedy’ and ‘irreparable harm’ [citation]
. . . on the theory the Legislature has in effect determined these questions in the
petitioner’s favor by authorizing the writ relief. But this approach is not uniformly
adopted. Other courts require the petitioner to affirmatively establish these two
prerequisites in all cases, notwithstanding statutory authority for the writ.” (Eisenberg et
al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2015) ¶ 15:87, p.
15-46.) Published cases holding that courts have wrongly denied section 170.6 motions
do not include an explicit analysis of whether the petitioners in those cases would be
irreparably harmed by a failure to provide relief. (See, e.g., Manuel C. v. Superior Court
(2010) 181 Cal.App.4th 382; First Federal Bank of California v. Superior Court (2006)
143 Cal.App.4th 310; Pandazos v. Superior Court (1997) 60 Cal.App.4th 324.) This
suggests that irreparable harm is either presumed or considered to be unnecessary in
section 170.6 writ petitions.

                                                 8
disqualification motion would actually make a difference in the outcome of the case (an
inherently speculative enterprise) or that the moving party could not successfully move to
disqualify the trial judge for cause under section 170.3 (a showing that would undermine
§ 170.6 by requiring the party to disclose the specific reason for believing the judge was
not fair and impartial and to explain why evidence could not be marshaled to disqualify
the judge for cause).
              It has often been stated that courts review an order denying a section 170.6
motion for an abuse of discretion. (E.g., Grant v. Superior Court (2001) 90
Cal.App.4th 518, 523.) This standard of review has meaning in some cases, when there
are factual questions that must be sorted out by trial courts before the motion can be
granted or denied. For instance, section 170.6, subdivision (a)(4), limits “each side” of a
case to one peremptory challenge. It may be unclear in some cases whether “joined
parties (e.g., codefendants) are on the same side.” (Orion Communications, Inc. v.
Superior Court (2014) 226 Cal.App.4th 152, 159.)
              But a trial court has no discretion to refrain from following binding
Supreme Court authority. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57
Cal.2d 450, 455-456; People v. Franc (1990) 218 Cal.App.3d 588, 593 [“Although stare
decisis doctrine retains some flexibility, it permits only the California Supreme Court, not
a lower court, to depart from Supreme Court precedent”].) As acknowledged in
respondent court’s order, the paramount legal question in this case is the reach of
Solberg, supra, 19 Cal.3d 182: “As a decision of the state’s highest court, the holding in
Solberg must be followed by all inferior California courts. [Citations.] [¶] But is
Solberg’s holding so broad that it requires all trial courts to grant all timely blanket
challenges regardless of the circumstances?” Our review is de novo with regard to the
question of whether Solberg precludes an inquiry by respondent court into the district
attorney’s use of section 170.6.



                                               9
              In our view, petitioner is entitled to writ relief because Solberg cannot be
“fairly distinguished” (Trope v. Katz (1995) 11 Cal.4th 274, 287) from the factual
scenario presented here. Under these circumstances, we conclude Solberg precluded
respondent court from assessing the motivations and weighing the consequences of the
district attorney’s peremptory challenges as a basis for denying a section 170.6 motion on
separation of powers grounds.
Solberg—Factual and Procedural Context
              The factual and procedural context of Solberg, supra, 19 Cal.3d 182, is
complicated, with a technical wrinkle that potentially bears on its authoritative power. In
four prostitution matters, the deputy district attorney exercised his section 170.6 right to
disqualify the assigned municipal court judge prior to hearings scheduled to entertain
dismissal motions. The municipal court judge declined to disqualify herself. (Solberg,
supra, 19 Cal.3d at pp. 187-188.) At superior court writ proceedings initiated by the
district attorney, counsel for the municipal court offered to prove that the disqualification
motions “were ‘blanket challenges’ motivated by prosecutorial discontent with [the
municipal court judge’s] prior rulings of law.” (Id. at p. 188.) The superior court judge
“denied the offer as immaterial” and “quashed subpoenas against the district attorney and
his staff for the purpose of eliciting such proof.” (Ibid.) The superior court judge issued
writ relief compelling disqualification of the municipal court judge. This judgment was
appealed and the California Supreme Court later granted review. (Id. at pp. 188-189.)
              Before the superior court judge issued his writ of mandate, two of the four
real parties in interest (i.e., the defendants accused of prostitution) filed section 170.6
motions to disqualify the superior court judge. (Solberg, supra, 19 Cal.3d at p. 188.) The
superior court judge denied the motions on two grounds: (1) he was acting as an
appellate judge in the matter at issue; and (2) the challenges were filed by real parties in
interest (not true parties). (Id. at p. 189.) Real parties filed a writ petition with the Court
of Appeal to challenge the superior court judge’s denial of their section 170.6 motions;

                                              10
“that proceeding [was brought before the Supreme Court] on an alternative writ issued by
the Court of Appeal.” (Solberg, supra, 19 Cal.3d at p. 189.)
              Thus, the Solberg court had before it two distinct but related matters—the
judgment (a writ of mandate compelling the disqualification of the municipal court
judge), and a writ proceeding (seeking a writ of mandate compelling the disqualification
of the superior court judge). The Solberg opinion disposed of both disputes.
              As to the writ proceeding, the Supreme Court rejected the superior court
judge’s grounds for refusing to honor section 170.6 motions filed by real parties.
(Solberg, supra, 19 Cal.3d at pp. 189-190.) “A writ of mandate will therefore lie to
compel [the superior court judge] to vacate his order denying the motion for
disqualification. [¶] All orders made thereafter by [the superior court judge] in these
proceedings are likewise void, including the judgment directing issuance of a peremptory
writ commanding [the municipal court judge] to disqualify herself in the criminal
matters.” (Id. at p. 190.) The last paragraph of the opinion ordered with regard to the
writ proceeding: “[L]et a peremptory writ of mandate issue as prayed.” (Id. at p. 204.)
              Having determined the superior court judge’s orders were void, including
the writ of mandate compelling the disqualification of the municipal court judge, the
Solberg court was not obligated to review the merits of the judgment. Indeed, the
disposition of the appeal in the last paragraph of the opinion was the following: “the
appeal is dismissed.” (Solberg, supra, 19 Cal.3d at p. 204, italics added.) There was no
need to affirm or reverse the judgment; there was no longer any judgment to review. The
                                              4
opinion could have ended on its fifth page.

4
              A contrary argument made by the district attorney at oral argument is that
the remainder of the opinion was necessary to the court’s decision to issue the writ
commanding the superior court judge to recuse himself. Before indicating a writ would
issue, the court stated: “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.” (Solberg,

                                                  11
              Instead, the majority opinion continued for 14 additional pages, composed
of an in depth review of the constitutionality of section 170.6. The court explained, “the
issues presented by the appeal from that judgment will doubtless arise on remand, and we
therefore proceed to address their merits.” (Solberg, supra, 19 Cal.3d at p. 190.)
              It is the 14 pages of, strictly speaking, unnecessary analysis that pertains to
the separation of powers issue raised in this case. Is this portion of Solberg composed
solely of dicta? Can it be deemed a holding, despite the fact that it was not necessary to
the disposition of the appeal?
              “‘Only statements necessary to the decision are binding precedents . . . .’
[Citation.] ‘The doctrine of precedent, or stare decisis, extends only to the ratio
decidendi of a decision, not to supplementary or explanatory comments which might be
included in an opinion.’” (Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 272
[declining to follow dicta of California Supreme Court].) Of course, “it is often difficult
to draw hard lines between holdings and dicta.” (See United Steelworkers of America v.
Board of Education (1984) 162 Cal.App.3d 823, 834 (United Steelworkers).) In United
Steelworkers, the appellate court treated a prior Supreme Court’s “broad answers to the
questions raised by all parties” for guidance “on remand” as a holding. (Ibid.) Similarly,
in Solberg the court intended to instruct the lower court on remand and provided a full
account of its reasoning in providing those instructions.
              Moreover, “‘[e]ven if properly characterized as dictum, statements of the
Supreme Court should be considered persuasive. [Citation.]’ [Citation.]” (Hubbard v.
Superior Court (1997) 66 Cal.App.4th 1163, 1169.) “When the Supreme Court has



supra, 19 Cal.3d at p. 190, italics added.) But nothing in the Solberg opinion suggests
that the constitutionality of section 170.6 was before it in the writ proceeding. And the
court’s explanation of why it decided to address the merits of the appeal—because “the
issues presented . . . will doubtless arise on remand” (ibid.) was unnecessary if the
constitutional analysis was necessary to the decision on the writ.

                                             12
conducted a thorough analysis of the issues and such analysis reflects compelling logic,
its dictum should be followed.” (Ibid.)
              In sum and on balance, we are bound by Solberg in our examination of the
separation of powers issue presented. Even if rightly considered dicta, the 14 pages of
analysis included in Solberg on the separation of powers issue cannot simply be
discarded by an inferior court. We need not decide whether the unusual procedural
features of Solberg would affect our Supreme Court’s application of stare decisis
principles should it choose to review the instant case.
Solberg’s Separation of Powers Analysis
              As presented to the Supreme Court, the Solberg appellants’ principal
contention was “that section 170.6 is unconstitutional because it violates the doctrine of
separation of powers [citation] and impairs the independence of the judiciary [citation].”
By not requiring any reasons for disqualification to be stated, “the statute in effect
delegates . . . the judicial power to determine whether [a ground for disqualification]
exists in the particular case in which it is invoked.” (Solberg, supra, 19 Cal.3d at pp.
190-191.)
              Solberg rejected appellants’ contentions, reaffirming the continuing vitality
and applicability to criminal cases of Johnson, supra, 50 Cal.2d 693, which held 19 years
earlier that section 170.6 was constitutional. Point by point, Solberg rejected critiques of
section 170.6 and Johnson. (Solberg, supra, 19 Cal.3d at pp. 191-193.) After stating
actual prejudice is not required to invoke section 170.6, Solberg characterized section
170.6 as “‘an extraordinary right to disqualify a judge.’” (Solberg, supra, 19 Cal.3d at p.
193.) Much of the initial analysis discussed asserted abuses of section 170.6 that had
only become known after Johnson, e.g., judge-shopping (including to avoid a judge
whose legal views are not helpful to one’s case), use for tactical advantage (including to
delay a case, particularly in single-judge courtrooms or single-judge specialty courts),
and false swearing of affidavits. (Solberg, supra, 19 Cal.3d at pp. 194-200.)

                                             13
              The appeal was not limited to generalities. It was contended “that the case
at bar [was] an example of” the abuses engaged in by counsel. The municipal court judge
“dismissed a number of prostitution cases after ruling that the defendants therein were the
victims of discriminatory law enforcement practices based on the suspect classification of
sex because in each instance only the female prostitute, and not her male customer, was
arrested and prosecuted. . . . [P]rostitution charges against the individual real parties in
interest herein came before [the municipal court judge] for the purpose of setting a date to
hear their motions to dismiss on the same ground. The People moved to disqualify her
under section 170.6 allegedly because of a perceived inability to have a fair trial ‘in cases
of these kinds in this court’ [citation]. Appellants assert that the circumstances and
wording of the motion show it was primarily based on the People’s dissatisfaction with
[the municipal court judge’s] prior legal ruling on discriminatory law enforcement.”
(Solberg, supra, 19 Cal.3d at p. 194, fn. 11.)
              The Solberg court assumed the charges of abuses were true. It did “not
condone such practices, nor [did it] underestimate their effect on the operation of our trial
courts.” (Solberg, supra, 19 Cal.3d at p. 195.) But the existence of abuses did not result
in the court declaring section 170.6 to be unconstitutional, either in general or as applied
to the specific case before it. (Solberg, supra, 19 Cal.3d at pp. 192-200.)
              In addressing the appellants’ challenge to the statute, the court did not
indicate whether it viewed the challenge to be a “facial” or an “as applied” challenge.
Reviewing the discussion, we conclude the court considered it as both. Reliance on
Johnson, supra, 50 Cal.2d 693, suggests a facial challenge analysis. The court also
recognized the significant delay in a single-judge court and the inevitable delay in even a
multi-judge court that will result from the filing of an affidavit. (Solberg, supra, 19
Cal.3d at p. 195.) It acknowledged that in multi-branch courts, a disqualification may
also result in a desired change in the place as well as the date of trial and “in courts with
specialized departments—such as a psychiatric or juvenile department—the statute has

                                              14
been used to remove the judge regularly sitting in that department in the hope of
benefiting from the substitution of a less experienced judge.” (Ibid.) And lastly, the
court recognized the statute could be “invoked to intimidate judges generally and in
certain cases even to influence the outcome of judicial election campaigns [citation].”
(Ibid.) After consideration of these various potential abuses, the court concluded it would
not hold the statute invalid as applied. (Ibid.)
              Most pertinent to the petition before us is Solberg’s analysis of the
contention that Johnson was distinguishable because it was a civil case. “The argument
is that in all criminal actions the plaintiff and its attorney remain the same, i.e., the People
of the State of California represented by the district attorney; the defendant is different in
each case, but in most instances is represented by the same counsel, the public defender.
This uniformity of either party or counsel assertedly permits the ‘institutionalization’ of
many of the abuses discussed herein, and in particular the abuse known as the ‘blanket
challenge.’ The practice occurs when as a matter of office policy a district attorney or a
public defender instructs his deputies to disqualify a certain disfavored judge in all
criminal cases of a particular nature . . . or in all criminal cases to which he is assigned.
The former policy will prevent the judge from hearing any cases of that type, while the
latter policy will force his removal from the criminal bench and his reassignment to a
civil department.” (Solberg, supra, 19 Cal.3d at pp. 201-202, fn. omitted.)
              Solberg flatly rejected the notion that the concerns particular to criminal
law made any difference. “[T]his contention is different not in kind but only in degree
from the arguments rejected in Johnson, and [] the difference does not warrant a contrary
result.” (Solberg, supra, 19 Cal.3d at p. 202.) “[T]he possibility of the filing of ‘blanket
challenges’ does not distinguish the present criminal proceeding from Johnson, and the
reasoning of that decision is equally applicable to the current version of the statute,
governing both civil and criminal cases.” (Id. at p. 204.)



                                              15
              Solberg rested its analysis regarding blanket challenges on two supports.
First, it recalled the “self-limiting aspects of abuse of section 170.6” — i.e., both the
technical limits in the statute itself (only one challenge is available to a party and it must
be used in a timely fashion) and the offsetting practical concerns of district attorneys (not
antagonizing the bench and not delaying the administration of justice and the real
possibility the substitute judge who entered the case may be even less satisfactory to the
lawyer or his client than the judge whom they disqualify). (Solberg, supra, 19 Cal.3d at
p. 202.) Second, Solberg described its prior analysis of blanket challenges in a judicial
misconduct opinion (McCartney v. Commission on Judicial Qualifications (1974) 12
Cal.3d 512, overruled on other grounds in Spruance v. Commission on Judicial
Qualifications (1975) 13 Cal.3d 778, 799 & fn. 18 (McCartney)). In McCartney, the
court was critical of blanket challenges but did not indicate that such an abuse “vitiates”
                                                        5
section 170.6. (Solberg, supra, 19 Cal.3d at p. 203.)
              In a footnote, Solberg specifically addressed the prospect of a blanket
challenge forcing a court to remove a judge from a criminal assignment. Solberg held


5
                McCartney observed in a footnote: “The blanket nature of these filings . . .
in itself reflects a measure of impropriety. As the objective of a verification is to insure
good faith in the averments of a party [citation], the provision in . . . section 170.6 for the
showing of prejudice by affidavit requires a good faith belief in the judge’s prejudice on
the part of the individual party or counsel filing the affidavit in each particular case.
[Citations.] The ‘blanket’ nature of the written directive issued by the public defender
arguably contravened this requirement of good faith by withdrawing from each deputy
the individual decision whether or not to appear before [a particular judge]. To phrase it
another way, the office policy predetermined that prejudice would be claimed by each
deputy without regard to the facts in each case handled by the office, thereby
transforming the representations in each affidavit into bad faith claims of prejudice.”
(McCartney, supra, 12 Cal.3d at p. 538, fn. 13.) But in the text of the opinion,
McCartney observed, “the Legislature clearly foresaw that the peremptory challenge
procedure would be open to such abuses but intended that the affidavits be honored
notwithstanding misuse.” (Id. at p. 538.)



                                              16
that even “this radical consequence” is still distinguishable from cases outside the section
170.6 context in which separation of powers violations were found. (Solberg, supra, 19
Cal.3d at p. 202, fn. 22.) “The effect of [section 170.6] is at most to remove the
individual judge assigned to the case or the department, but not to deprive the court of the
power to hear such cases by assignment of another judge.” (Solberg, supra, 19 Cal.3d at
p. 202, fn. 22.)
               Nothing in Solberg indicates that its analysis was limited to circumstances
in which only four challenges were at issue (or that if the Solberg appellants had proven
that the municipal court judge had been excluded 50 times and that this undermined court
operations, such a showing would have been sufficient). Indeed, nothing in Solberg
leaves room for the consideration of evidence or a different result if the evidence is
substantial enough.
               Instead, Solberg rejected the separation of powers challenge, concluding
that abuses committed under the authority of the statute were an “inconsequential price to
be paid for the efficient and discreet procedure provided in section 170.6.” (Solberg,
supra, 19 Cal.3d at p. 204.) Solberg also denied a motion to appoint a referee to take
evidence concerning abuses of section 170.6; such evidence “is not material to the
disposition” of the appeal because the court assumed the abuses it described were true.
These abuses did not render the statute “invalid as applied.” (Solberg, supra, 19
Cal.3d at p. 195, fn. 12.) Solberg implicitly, if not explicitly, suggests that courts should
not conduct evidentiary hearings (or otherwise marshal evidence on their own, as
happened here) to determine the extent of the abuses committed by parties utilizing
section 170.6 challenges. Instead, courts should grin and bear this “reasonable—and
hence valid—accommodation of the competing interests of bench, bar, and public on the
subject of judicial disqualification.” (Solberg, supra, 19 Cal.3d at p. 204.) Any
adjustments to this balance should be made by the Legislature. (Ibid.)



                                             17
              Solberg is binding authority. Solberg anticipated the circumstances
presented here, and its reasoning, as described above, prevents respondent court or this
court from entertaining the argument the district attorney’s use of peremptory challenges
resulted in a separation of powers violation. A writ of mandate must issue compelling
respondent court to vacate its order and to assign this case to a different judge.
The Supreme Court Should Revisit Solberg
              After considering “experience with the statute [in the preceding] decades
and as applied . . . in a criminal context” (Solberg, supra, 19 Cal.3d at p. 187), the
Solberg court determined the statute did not “‘substantially impair’ or ‘practically defeat’
the exercise of the constitutional jurisdiction of the trial courts.” (Id. at p. 204.) But the
court acknowledged future adjustments to this sensitive balance of the competing
interests of bench, bar, and public on the subject of judicial disqualification may become
necessary or desirable. (Ibid.)
              Circumstances within our justice system have changed dramatically in the
nearly four decades since Solberg was decided. Public safety and the constitutional rights
of the accused remain primary concerns as courts grapple with increased caseloads, a
steady stream of statutory changes, and reduced funding. Examples of statutory changes
that have had major impacts on court operations include the Safe Neighborhoods and
Schools Act of 2014, the California Criminal Realignment Act of 2011, and the Gang
Violence and Juvenile Crime Prevention Act of 1998.
              Solberg may be “good law,” in the sense that it is a binding case that has
not been abrogated or reversed, but we question its efficacy in the context of the current
                              6
reality of the justice system. Broadly speaking, Solberg leaves no room to remedy

6
              We confine our analysis in this section to the question of whether Solberg
overreached in its separation of powers analysis with regard to the specific problem of
blanket challenges in criminal law cases. We do not take issue with the facial
constitutionality of section 170.6 or the desirability in general of section 170.6 as a matter
of policy. (Cf. Burg, Meeting the Challenge: Rethinking Judicial Disqualification

                                              18
extraordinary abuses like those apparently perpetrated in the instant case. The holding in
Solberg (i.e., the exercise of a peremptory challenge under § 170.6 never results in a
separation of powers violation, regardless of the extent of the abuse) arguably conflicts
with the direction of its separation of powers jurisprudence. (See Steen v. Appellate
Division of Superior Court (2014) 59 Cal.4th 1045, 1053 [one branch may not “defeat or
materially impair the inherent functions of another”]; Carillo and Chou, California
Constitutional Law: Separation of Powers (2011) 45 U.S.F. L. Rev. 655, 678-681
[California Supreme Court generally approaches separation of powers issues by
determining if a core power has been materially impaired].) We posit that the judiciary’s
core power “‘to control its order of business’” and safeguard “‘the rights of all suitors’”
(Lorraine v. McComb (1934) 220 Cal. 753, 756) can be materially impaired if a blanket
challenge goes too far.
              Case law from another type of constitutional claim shows that the
provisions of section 170.6 are not absolute. A section 170.6 challenge made on the basis
of the judge’s race is subject to an equal protection claim. (See People v. Superior Court
(Williams) (1992) 8 Cal.App.4th 688 (Williams).)
              In Williams, supra, 8 Cal.App.4th at page 695, a criminal defendant alleged
that the prosecutor had exercised a peremptory challenge against the (black male) judge
based on group bias against blacks. The Williams trial judge denied the section 170.6
challenge. (Williams, supra, 8 Cal.App.4th at p. 695.) The appellate court issued writ
relief requiring the disqualification of the trial judge because the petitioner complied with
the “procedural requisites.” (Id. at pp. 698-699 [“peremptory challenge was thus timely
and in proper form, and recusal of [j]udge was mandatory”].) But in doing so, Williams
expressed the view that “[s]ection 170.6 cannot be employed to disqualify a judge on
account of the judge’s race. A fortiori, section 170.6 cannot be implemented in such a

(1981) 69 Cal. L. Rev. 1445 [advancing thesis that peremptory challenges are an
undesirable solution to problems of judicial disqualification].)

                                             19
way as to preclude inquiry into whether the statute has been employed to disqualify a
judge on account of race.” (Williams, supra, 8 Cal.App.4th at p. 707.) Section 170.6
challenges based on group bias, a violation of the equal protection clause of the United
States Constitution, cannot reasonably be grouped in among the abuses deemed to be
mere nuisances in Solberg, supra, 19 Cal.3d 182. (Williams, supra, 8 Cal.App.4th at pp.
706-707.) “[A]ny party charging that his adversary has used a section 170.6 challenge in
a manner violating equal protection bears the burden of proving purposeful
discrimination. [Citation.]” (Williams, supra, 8 Cal.App.4th at p. 708.) A prima facie
showing of purposeful discrimination was not made in Williams. (Id. at p. 711.)
              If the procedural approach offered by Williams, or something similar, were
to be adopted in separation of powers cases, only a prima facie showing of improper
blanket challenges by a governmental entity would result in the governmental entity
being required to justify its use of section 170.6. Respondent court’s order reflects that
approach to some extent, by offering petitioner the opportunity to present evidence at a
hearing in which respondent court would reconsider its denial of the section 170.6
motion. Other states similarly have declined to make peremptory challenge rights
absolute when blanket papering becomes a threat to judicial independence. (See State v.
City Court of City of Tucson (Ariz. 1986) 722 P.2d 267; People ex rel. Baricevic v.
Wharton (Ill. 1990) 556 N.E.2d 253; State v. Erickson (Minn. 1999) 589 N.W.2d 481.)
              In addition to the rigid rule it laid down, we also find fault with the specific
analysis of the Solberg court pertaining to blanket challenges. First, the Solberg court
was convinced that “the self-limiting aspects of abuse of section 170.6” would come into
play before a blanket challenge became a dire threat to the operation of courts. (Solberg,
supra, 19 Cal.3d at p. 202.) But the experience of this case disproves the Supreme
Court’s deductive logic. For whatever reason, the district attorney appears to be
unconcerned with blowback from the blizzard of affidavits filed by the People.



                                             20
               Second, the reasoning employed in Solberg is offensive to the judiciary.
Solberg suggests that “unwarranted ‘blanket challenges’ . . . may well . . . antagonize the
remaining judges of the court . . . .” (Solberg, supra, 19 Cal.3d at p. 202.) This line of
thought implies judges will violate their ethical duties, including the duty to “perform the
duties of judicial office impartially.” (Cal. Code Jud. Ethics, canon 3.) It seems absurd
to justify absolute deference to a statute presuming the good faith of attorneys in filing
section 170.6 motions by assuming judges will react in bad faith to overuse of the statute.
               Third, as to blanket challenges, Solberg can fairly be characterized as
double dictum. As explained above in this opinion, the entire 14 pages of separation of
powers analysis in Solberg is arguably dicta. Within the section of the opinion dealing
specifically with blanket challenges, Solberg placed great stock in the prior analysis of
section 170.6 in a judicial ethics opinion, McCartney, supra, 12 Cal.3d 512, not an
opinion procedurally situated to assess a separation of powers challenge to the use of a
blanket challenge. (Solberg, supra, 19 Cal.3d at p. 202 [deeming its discussion of
McCartney to be the “more important[]” of its two lines of argument].) As noted by
respondent court in this case, “the broad pronouncement in McCartney, on which Solberg
relied, is, at best, dictum.”
               In sum, we agree with the dissenting view of Justice Tobriner: “the use of
‘blanket’ challenges under section 170.6 to disqualify a judge because of his judicial
philosophy or his prior rulings on questions of law seriously undermines the principle of
judicial independence and distorts the appearance, if not the reality, of judicial
impartiality. . . . [We] do not believe that the judiciary [should be] helpless to prevent
such an abuse of the section 170.6 disqualification procedure, particularly in a case—
such as the present one—in which the improper basis of the disqualification motion
clearly appears on the face of the record.” (Solberg, supra, 19 Cal.3d at p. 205, dis. opn.
of Tobriner, J.)



                                             21
              As described by respondent court, the disruption to the operations of that
court is not an “‘inconsequential price to be paid for the efficient and discreet procedure
provided in section 170.6.’” Years of budget cuts to the California trial courts have taken
their toll on all court operations. The chaos that has resulted from the abuse of section
170.6 affidavits is all the more troubling because of the judicial branches current funding
reality. Like all trial courts, the Orange County Superior Court struggles to perform its
constitutional and statutorily mandated functions. 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.
Like at least one court before us (Autoland, Inc. v. Superior Court (1988) 205
Cal.App.3d 857, 861-862), we call on our Supreme Court to reexamine Solberg.
                                       DISPOSITION
              Let a peremptory writ of mandate issue directing respondent court (1) to
vacate its order denying petitioner’s section 170.6 motion and (2) to issue a new and
different order assigning this case to a judge other than Judge Goethals. The order to
show cause is discharged.



                                                  O’LEARY, P. J.

I CONCUR:



ARONSON, J.




                                             22
ARONSON, J., Concurring:
              As an intermediate appellate court we must follow Supreme Court
precedent. This axiom is often misunderstood by the general public, which may assume
we are free to decide each case based on our innate sense of what is “right” or what we
believe the law should be. In reality, the outcome of many appeals depends on whether
an earlier Supreme Court decision covers the matter before us or fairly may be
distinguished. Because I conclude the Supreme Court’s opinion in Solberg v. Superior
Court (1977) 19 Cal.3d 182 (Solberg) resolves the issues raised here, I join Justice
O’Leary’s lead opinion that Solberg compels us to grant the petition by the People of the
State of California (petitioner) for a peremptory writ of mandate directing respondent
Superior Court of Orange County (respondent court) to vacate its order denying
                                                                                    7
petitioner’s disqualification motion under Code of Civil Procedure section 170.6.
              Respondent court denied petitioner’s section 170.6 motion because it
concluded the motion was part of the Orange County District Attorney’s (district
attorney) coordinated campaign to “blanket paper” Judge Thomas Goethals to prevent
him from hearing murder trials in retaliation for Judge Goethals’s rulings in three earlier
murder cases. As described more fully in both the lead and dissenting opinions,
Judge Goethals found the district attorney’s office repeatedly engaged in misconduct in
violation of the defendants’ constitutional rights, and in one of the cases he found the
misconduct created a conflict of interest requiring the office’s recusal. Respondent court
found the campaign to prevent Judge Goethals from hearing long cause murder trials
substantially interfered with the court’s ability to administer criminal justice in Orange
County, and thereby violated the separation of powers doctrine.
              In Solberg, however, the Supreme Court concluded blanket papering does
not constitute a violation of the separation of powers doctrine even if the widespread

       7
              All statutory references are to the Code of Civil Procedure.
misuse of section 170.6 prevents a judge from hearing all or certain types of cases.
(Solberg, supra, 19 Cal.3d at pp. 201-204.) In particular, Solberg established the validity
of section 170.6 “as applied . . . in a criminal context,” despite the fact that institutional
parties like the district attorney or public defender may engage in blanket papering.
(Solberg, at p. 187.)
              Although I reach a different result, I agree with several observations
Justice Thompson makes in his dissent. For example, I agree Solberg did not inoculate
section 170.6 against all conceivable separation of powers challenges, but rather left
room for future as applied challenges. The nature of every as applied challenge is that it
must be evaluated on its own merits. I also agree substantial evidence supports
respondent court’s conclusion the district attorney engaged in blanket papering of
Judge Goethals and did so to retaliate and punish a widely respected and experienced
jurist the district attorney previously accepted on a routine basis. Nonetheless, I cannot
agree with the dissent’s conclusion Solberg does not control the outcome here.
              The dissent views Solberg as dealing only with a facial challenge to
section 170.6, but acknowledges “[e]ven if Solberg implied section 170.6 was
constitutional as applied to the facts of that case, it is only binding precedent with
reference to those facts.” (Dis. opn. at p. 8, fn. 2.) The dissent also distinguishes the
“character and magnitude” of the blanket challenges here from the four challenges lodged
in Solberg. (Dis. opn. at pp. 11-13.) I read Solberg differently. Solberg found a
quantitative difference in the number of challenges did not violate the separation of
powers doctrine, and its broad discussion of blanket challenges shows the Supreme Court
did not intend to limit the precedential value of its decision to cases involving few
challenges. Solberg acknowledged blanket challenges by the district attorney or public
defender might “force” the judge’s removal from the criminal bench, presumably because
the number of challenges would interfere with the court’s operations by diverting more
cases to other judges (Solberg, supra, 19 Cal.3d at p. 202), but Solberg concluded this

                                               2
posed no separation of powers violation because reassignment did not deprive the court
of the power to hear the case (id. at p. 202, fn. 22). Nor did Solberg see blanket
challenges as a threat to judicial independence, even if “invoked to intimidate judges
generally” or used “to influence the outcome of judicial election campaigns.” (Id. at
p. 195.)
              In sum, Justice Thompson’s analysis may have formed the basis for our
decision if we were writing on a clean slate. Solberg, however, anticipated the
circumstances we face in this case and found that blanket challenges under section 170.6
                                                   8
did not violate the separation of powers doctrine. As explained in the lead opinion,

       8
              The dissent and respondent court distinguish Solberg on the ground it
involved a separation of powers conflict between the legislative and judicial branches of
government, but the district attorney’s blanket use of section 170.6 in this case involves a
conflict between the executive and judicial branches. I disagree.

               Respondent court does not challenge the district attorney’s use or exercise
of any executive power. Rather, the power or right at issue is one the Legislature created
and delegated not only to the district attorney, but also to all litigants and attorneys in any
civil or criminal action. Absent section 170.6, the district attorney has no inherent
executive right or power to disqualify a judge based solely on a suspicion the judge
would be biased. It is the express terms of the statute that create the potential for
undermining court functions.

               Respondent court concluded the unconstitutional interference with its
powers arose from the scope and basis for the district attorney’s challenges, not from the
fact that it was the district attorney making the challenges. Although the public defender
is not a member of the executive branch, it too potentially could interfere with the court’s
powers in the same manner by lodging blanket challenges to a particular judge. Indeed,
even a single law firm specializing in an area of civil law potentially could interfere with
the court’s powers by exercising a blanket challenge to the only judge hearing cases
involving that area of the law.

              The separation of powers conflict at issue therefore arises between the
legislative and judicial branches. Nonetheless, regardless how one views the separation
of powers conflict, Solberg anticipated the circumstances presented in the present case
and found blanket challenges by a district attorney would not create a separation of
powers violation.


                                               3
Solberg is binding on this court, and therefore compels us to grant the petition because
respondent court abused its discretion in failing to follow Solberg’s dictates. (See People
v. Superior Court (Brim) (2011) 193 Cal.App.4th 989, 991 [“Failure to follow the
applicable law is an abuse of discretion”].)
              Not only do I agree with Justice O’Leary’s conclusion Solberg compels us
to grant the petition, I also agree with her criticism of Solberg’s analysis. I write
separately to discuss my further reservations about Solberg’s reasoning. Because Solberg
defined blanket challenges as nothing more than “‘bad faith claims of prejudice’” under
section 170.6, I question how Solberg nevertheless could conclude blanket papering by a
district attorney passes constitutional muster. (Solberg, supra, 19 Cal.3d at p. 203.) Not
only is Solberg internally inconsistent in ratifying bad faith prejudice claims barred by
section 170.6, it also conflicts with the Supreme Court’s earlier jurisprudence on the
constitutionality of statutes allowing peremptory challenges to individual judges. Based
on the district attorney’s use of blanket papering in this case and similar tactics in other
jurisdictions, this may be an opportune time for the Supreme Court to clarify the
constitutional analysis in evaluating whether institutionalized blanket challenges violate
the separation of powers doctrine.

  The Predecessor Statute and the Court’s Earlier Judicial Disqualification Decisions
              California law long has allowed a party to disqualify the judge assigned to
hear a case based on an evidentiary showing and independent judicial determination of
bias, prejudice, interest, or other disqualifying characteristic. (Johnson v. Superior Court
(1958) 50 Cal.2d 693, 696-697 (Johnson); Austin v. Lambert (1938) 11 Cal.2d 73, 75-76
(Austin).) In 1937, however, the California Legislature enacted section 170.5 allowing a
party to remove a judge from a case without establishing a disqualifying characteristic or
an independent judicial determination. Section 170.5 required the presiding judge to
assign a new judge to hear a case when a litigant simply filed a written “peremptory


                                               4
challenge” to the assigned judge. The statute did not require the litigant to state the
ground for his or her challenge or to declare under oath that any disqualifying
characteristic existed. (Austin, at pp. 74-75.) As Austin noted, “Nothing is said in the
new section about bias, prejudice, interest or any other recognized ground for
disqualification.” (Id. at p. 76.)
              In Austin, the Supreme Court held section 170.5 unconstitutional as an
“unwarranted and unlawful interference with the constitutional and orderly processes of
the courts” because it made “the exercise of judicial power, duty and responsibility
subject to the whim and caprice of a lawyer or litigant.” (Austin, supra, 11 Cal.2d at
pp. 76, 79.) Although it acknowledged the Legislature’s authority to establish reasonable
regulations concerning the disqualification of a judge (id. at pp. 75-76), the Supreme
Court nonetheless explained that placing “in the hands of a litigant uncontrolled power to
dislodge without reason or for an undisclosed reason, an admittedly qualified judge from
the trial of a case in which forsooth the only real objection to him might be that he would
be fair and impartial in the trial of the case would be to characterize the statute not as a
regulation but as a concealed weapon to be used to the manifest detriment of the proper
conduct of the judicial department” (id. at p. 79). The court explained this crossed
constitutional boundaries because a judge takes an oath to discharge the duties of his
office, including the obligation to “determine causes presented to him.” (Id. at p. 75.) A
judge must discharge that duty absent “good cause.” (Ibid.)
              Austin recognized that several other states had upheld the constitutionality
of statutes that allowed a “so-called ‘peremptory challenge’” to a judge, but it
distinguished those statutes on the ground they uniformly required the party seeking to
disqualify the judge to file a declaration under oath asserting the judge was biased or
prejudiced against the party, even though many of the statutes did not allow judicial
inquiry into the basis for that assertion. (Austin, supra, 11 Cal.2d at p. 76.) As the
Supreme Court explained, “Such an ex parte proceeding has been upheld on the ground

                                               5
that the charge of bias or prejudice under oath is at least an imputation of such
disqualification sufficient to save the statute from successful attack on constitutional
grounds.” (Id. at p. 76.)
              Nearly 20 years later, the California Legislature enacted section 170.6
modeled after the statutes from other states discussed in Austin. (Solberg, supra,
19 Cal.3d at p. 195.) As originally enacted, section 170.6 only applied to civil actions,
but otherwise allowed a party to disqualify a judge in the same manner as the current
statute—by filing a declaration under oath asserting the “‘party or attorney cannot or
believes that he cannot have a fair and impartial trial or hearing before such judge.’”
(Johnson, supra, 50 Cal.2d at p. 701; see id. at pp. 695-696.)
              Just a year after the statute’s enactment, the Supreme Court upheld the
facial constitutionality of section 170.6, rejecting a claim the statute violated the
separation of powers doctrine and impermissibly interfered with core judicial functions
by allowing a litigant or attorney to disqualify a judge for prejudice without requiring a
statement identifying the reasons the litigant or attorney believed the judge was
prejudiced, without proof of prejudice, and without a judicial determination of the judge’s
prejudice. (Johnson, supra, 50 Cal.2d at pp. 695-696.) Johnson explained the
Legislature has the authority to establish reasonable regulations concerning judicial
disqualification, and bias or prejudice long has been a recognized ground for
disqualification. Johnson also concluded section 170.6 established a permissible means
of disqualifying a judge for prejudice, explaining the Legislature’s decision to give
litigants an opportunity to disqualify a judge solely based on a sworn statement
professing the litigant’s belief in the judge’s prejudice was necessary to insure confidence
in the judiciary and avoid the suspicion that might arise in cases where it may be difficult
or impossible for the litigant to establish actual prejudice to the satisfaction of a judicial
body. (Johnson, at p. 697.)



                                               6
              Because section 170.6 does not require proof of prejudice, the Supreme
Court recognized a litigant may abuse the statute by disqualifying a judge to obtain a
perceived litigation benefit, such as a trial continuance while a new judge is assigned or
the assignment of a new judge the litigant believes may be more favorable. Johnson
concluded this potential for abuse did not render the statute unconstitutional because the
Legislature determined the statute’s benefits outweighed the potential problems caused
by these abuses, and the Legislature also included several safeguards in the statute to
minimize its abuse, including a requirement the party or its attorney show good faith by
                                                  9
declaring under oath that the judge is prejudiced. The Supreme Court found this good
faith requirement to be an effective safeguard because the court could not “assume that
there will be a wholesale making of false statements under oath.” (Johnson, supra,
50 Cal.2d at p. 697.) Later, the Supreme Court explained Johnson “relied heavily” on
these statutory safeguards in upholding section 170.6’s constitutionality. (McClenny v.
Superior Court (1964) 60 Cal.2d 677, 685-686.)
              One year after Johnson, the Legislature amended the statute so that it also
would apply to criminal actions. (See Solberg, supra, 19 Cal.3d at p. 201, fn. 20.)

                                   Solberg’s Analysis of Section 170.6
              In Solberg, the Supreme Court revisited section 170.6’s constitutionality,
and again affirmed the statute’s validity. (Solberg, supra, 19 Cal.3d at p. 187.) As in
Johnson, the court concluded section 170.6 did not violate the separation of powers
doctrine or impair the judiciary’s independence because the statute and the declaration
procedure it established was a reasonable exercise of the Legislature’s authority to


       9
              Other safeguards in section 170.6 include limiting each side in a case to one
challenge, placing strict time limits on when to assert a challenge, limiting continuances
based upon a request to disqualify a judge, and requiring prompt assignment of a new
judge. (Johnson, supra, 50 Cal.2d at p. 697.)


                                             7
regulate the disqualification of judges. Solberg emphasized the declaration under
section 170.6 did not establish actual prejudice, nor was actual prejudice required to
disqualify a judge under the statute. Rather, section 170.6 merely required the litigant to
hold a good faith belief in the judge’s prejudice, and the good faith of that belief was
established by the litigant declaring the belief under oath. (Solberg, at p. 193; id. at
p. 200 [“we have repeatedly held that the [section 170.6] motion . . . ‘requires a good
faith belief in the judge’s prejudice,’” and that good faith is established by declaring that
belief under oath because “‘the objective of a verification is to insure good faith in the
averments of a party’”].)
              Solberg also considered the courts’ experience with section 170.6 during
the two decades following Johnson to determine whether the statute’s actual operation
rendered it unconstitutional as applied based on various abuses. (Solberg, supra,
19 Cal.3d at p. 194.) The Supreme Court acknowledged this experience revealed litigants
had invoked section 170.6 for a wide variety of reasons other than disqualifying a judge
they believed was prejudiced, including removing a judge solely based on the judge’s
views on the law, delaying a hearing or trial, changing venue, obtaining a less
experienced judge, intimidating judges, and even influencing judicial election campaigns.
The court also acknowledged these abuses impacted the operation of California’s trial
courts as they rescheduled and reassigned cases to accommodate the parties’ right to have
a new judge assigned. (Solberg, at pp. 194-195.)
              Nonetheless, Solberg concluded the impact of these abuses on the courts
did not render section 170.6 unconstitutional as applied for two reasons. First, the
Supreme Court was aware of these abuses when it first upheld the statute’s
constitutionality in Johnson, and the experience with section 170.6 in the decades
following Johnson merely “added quantitatively but not qualitatively to [the court’s]
understanding of the problem.” (Solberg, supra, 19 Cal.3d at p. 196.) As the court had
explained in Johnson, the Legislature considered these potential abuses of the statute

                                              8
when it enacted section 170.6 and concluded the statute’s benefits outweighed the
potential problems these abuses posed to the courts. Second, as Johnson also explained,
the Legislature included safeguards in section 170.6 to minimize these abuses, including
requiring the litigant or attorney to show good faith by declaring under oath that the judge
is prejudiced. (Solberg, at pp. 196-197.) The Supreme Court again observed it would not
“‘assume that there will be wholesale making of false statements under oath.’” (Id. at
p. 197.)
              Of particular relevance to this case, Solberg also considered the
constitutionality of section 170.6 as applied in a criminal context and an abuse of the
statute unique to criminal cases: the “‘blanket challenge.’” (Solberg, supra, 19 Cal.3d at
p. 202.) As defined by Solberg, a blanket challenge “occurs when as a matter of office
policy a district attorney or a public defender instructs his deputies to disqualify a certain
disfavored judge in all criminal cases of a particular nature—such as those involving
prostitution or illegal narcotics—or in all criminal cases to which he is assigned.” (Ibid.)
Because the district attorney is the counsel for the plaintiff in all criminal cases and the
public defender is the counsel for the defendant in many criminal cases, a blanket
challenge can have a much broader impact than other potential abuses under
section 170.6 by preventing a judge from hearing any cases of a certain type or even
causing the judge’s removal from the criminal bench if the district attorney or public
defender challenge the judge in nearly every case. (Solberg, at pp. 201-202.)
              Quoting from an earlier judicial misconduct case involving a judge’s
intemperate reaction to the public defender’s policy challenging the judge in every case,
Solberg explained a blanket challenge lacks the good faith belief in prejudice that
section 170.6 requires in each individual case: “‘The “blanket” nature of the written
directive issued by the public defender arguably contravened this requirement of good
faith by withdrawing from each deputy the individual decision whether or not to appear
before [Judge McCartney]. To phrase it another way, the office policy predetermined

                                              9
that prejudice would be claimed by each deputy without regard to the facts in each case
handled by the office, thereby transforming the representations in each affidavit into bad
faith claims of prejudice.’” (Solberg, supra, 19 Cal.3d at p. 203, quoting McCartney v.
Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 538, fn. 13, disapproved on
other grounds in Spruance v. Commission on Judicial Qualifications (1975) 13 Cal.3d
778, 799, fn. 18.)
              Although Solberg recognized entirely removing a judge from the criminal
bench was a “radical consequence” of a blanket challenge, the court concluded the impact
of a blanket challenge “is different not in kind but only in degree” from the abuses
considered in Johnson, “and that difference does not warrant a contrary result.” (Solberg,
supra, 19 Cal.3d at p. 202 & fn. 22.) The Supreme Court condemned blanket challenges,
but nonetheless concluded that abuse of section 170.6 did not “vitiate[] the statute”
because “‘the Legislature clearly foresaw that the peremptory challenge procedure would
be open to such abuses but intended that the affidavits be honored notwithstanding
misuse. [Citation.]’ In short, the possibility of the filing of ‘blanket challenges’ does not
distinguish the present criminal proceeding from Johnson, and the reasoning of that
decision is equally applicable to the current version of the statute, governing both civil
and criminal cases.” (Solberg, at pp. 203-204, fn. omitted.)
              Finally, Solberg suggested that the potential for misuse of section 170.6 in
the criminal context was limited by the nature of the district attorney’s and public
defender’s practice. Because the district attorney’s and public defender’s entire practice
is concentrated before the same criminal judges, they must “realize that . . . if [they or
their] deputies file unwarranted ‘blanket challenges’ against a particular judge the effect
may well be to antagonize the remaining judges of the court, one of whom will be




                                             10
assigned to replace their unseated colleague, and the presiding judge, who will make that
               10
assignment.”        (Solberg, supra, 19 Cal.3d at p. 202.)

                                           Solberg’s Inconsistencies
                Solberg concluded there was no meaningful distinction between the abuses
of section 170.6 considered in Johnson and the abuse created by institutionalized blanket
challenges in criminal cases, and therefore Johnson’s analysis regarding section 170.6’s
constitutionality compelled the conclusion the statute also was constitutional as applied to
a blanket challenge. (Solberg, supra, 19 Cal.3d at p. 202.) The court’s earlier analysis in
Johnson and Solberg’s definition of a blanket challenge as a bad faith claim of prejudice
appear at odds with Solberg’s conclusion that blanket challenges in criminal cases do not
violate the doctrine of separation of powers.
                As explained above, Johnson and Solberg found section 170.6
constitutional because the Legislature may establish reasonable regulations concerning
the disqualification of judges, prejudice or bias is a permissible ground for disqualifying a
judge, and section 170.6 establishes a reasonable procedure for disqualifying a judge
based on prejudice because the statute requires the litigant or attorney to show a good
faith belief in the judge’s prejudice by stating that belief under oath. (Solberg, supra,
19 Cal.3d at pp. 191-193.)
                In Austin, the Supreme Court found the predecessor to section 170.6
unconstitutional because it allowed a party to disqualify a judge without specifying a
recognized basis for disqualification or making a showing of any kind. (Austin, supra,
11 Cal.2d at pp. 75-76, 79.) Providing the Legislature with a roadmap to the elements of

       10
               I share Justice O’Leary’s concern about the court’s conclusion that
wholesale misuse of section 170.6 would not occur because of the threat judges would
retaliate against any attorney or office that misuses the statute. The constitutionality of a
statute designed to minimize even the appearance of bias or prejudice cannot turn on the
willingness of judges to violate their ethical duty to act impartially.


                                                11
a constitutional statute, the Austin court explained that peremptory disqualification
statutes in other states survived constitutional attack because requiring the party to allege
bias or prejudice under oath at least imputed a recognized and well-accepted ground for
disqualification. (Id. at pp. 76-78.)
                    Solberg defined a blanket challenge as a bad faith claim of prejudice
because the claim is made based on a general policy determination by the district attorney
or public defender rather than a good faith belief the judge is prejudiced in any particular
        11
case.         (Solberg, supra, 19 Cal.3d at p. 203.) Under that definition, a blanket challenge
to a judge lacks the good faith belief required by section 170.6 and the statute is
unconstitutional as applied to that challenge. (See School Dist. of Okaloosa County v.
Superior Court (1997) 58 Cal.App.4th 1126, 1136-1137 [Solberg’s analysis suggests
showing of bad faith invalidates section 170.6 motion].) Indeed, if a section 170.6
challenge is made in bad faith, then the statute as applied to that challenge is no different
than the statute Austin found unconstitutional because the statute permits a litigant or
attorney to disqualify an otherwise qualified judge for a reason other than the judge’s
bias, the only statutorily-recognized ground for disqualification. (See Austin, supra,
11 Cal.2d at p. 79; Autoland v. Superior Court (1988) 205 Cal.App.3d 857, 861-862
[section 170.6 “is nothing more nor less than the old unconstitutional statute recycled
with an empty pretension of a sworn statement”].) Nonetheless, current law requires a

             11
                The Supreme Court’s imputation of bad faith to blanket challenges may be
over inclusive because under certain circumstances a blanket challenge to a judge could
be brought in good faith if the district attorney or public defender reasonably believes the
challenged judge is prejudiced against the entire office. That is not the case here,
however. As explained above, substantial evidence supports respondent court’s finding
that the district attorney asserted its blanket challenge to Judge Goethals in retaliation for
his legal conclusion in earlier cases that the district attorney engaged in misconduct or
prosecutorial error under Brady v. Maryland (1963) 373 U.S. 83 and Massiah v. United
States (1964) 377 U.S. 201. Before those rulings, the district attorney routinely accepted
Judge Goethals without question.


                                                  12
court to accept an affidavit of prejudice under section 170.6 even if the attorney lodging
the challenge admits to the court the filing is a sham. (See School Dist. of Okaloosa
County, at pp. 1136-1137.)
              Moreover, in both Solberg and Johnson, the Supreme Court rejected the
challenges to section 170.6 based on the many forms of abuse other than a blanket
challenge by stating the court would not assume “‘there will be a wholesale making of
                                 12
false statements under oath.’”        (Solberg, supra, 19 Cal.3d at p. 197; see Johnson, supra,
50 Cal.2d at p. 697.) But under Solberg’s definition of a blanket challenge, the wholesale
making of false statements under oath occurs by definition.

                                                   Conclusion
              The statutory scheme under section 170.6 prohibits a trial court from
exploring the reasons a party filed a challenge to a particular judge. A court must accept
the challenge, even if the court harbors a reasonable suspicion a party misused the
procedure for an impermissible reason. (Solberg, supra, 19 Cal.3d at p. 198.) As
Solberg explains, sound reasons support the Legislature’s decision to prohibit hearings
based on suspicion alone. (Id. at pp. 198-200.) But where substantial evidence, rather
than reasonable suspicion, exists showing bad faith blanket challenges by the district
attorney or public defender, a limited inquiry nonetheless may be warranted. I believe



       12
              Solberg and Johnson also rejected the argument that the various abuses of
section 170.6 unconstitutionally disrupted court operations, explaining the Legislature
considered the abuses and associated problems in enacting the statute and concluded the
statute’s benefits outweighed those problems. (Solberg, supra, 19 Cal.3d at pp. 196,
203-204; Johnson, supra, 50 Cal.2d at p. 697.) Whether the Legislature considered these
abuses and problems, however, should not be the governing standard for evaluating a
separation of powers challenge. Rather, as Solberg recognizes, the appropriate inquiry is
whether the statute on its face or in its application substantially impairs the constitutional
powers of the courts or practically defeats their exercise. (Solberg, at p. 192.)


                                                 13
the important issues raised by this case deserve further scrutiny, by the Supreme Court,
the Legislature, or both.




                                         ARONSON, J.




                                            14
THOMPSON, J., Dissenting—I respectfully dissent. The court’s decision today
transforms Code of Civil Procedure section 170.6 (section 170.6) into “a concealed
weapon to be used to the manifest detriment of the proper conduct of the judicial
department.” (Austin v. Lambert (1938) 11 Cal.2d 73, 79.) ‘“We cannot permit a device
intended for spare and protective use to be converted into a weapon of offense and
thereby to become an obstruction to efficient judicial administration.’ [Citation.]”
(Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 (Solberg).)
              Judge King did not abuse his discretion by denying the district attorney’s
motion to disqualify Judge Goethals under section 170.6. Judge King found their motion
ensued from Judge Goethals’ misconduct rulings against them. Judge King concluded
their motion violated the separation of powers doctrine and undermined the independence
of the judiciary. Judge King’s factual findings are supported by substantial evidence, his
legal conclusion is correct, and his ruling was not arbitrary or capricious.
              Solberg does not compel a different conclusion. Solberg held section 170.6
is constitutional on its face, despite the potential for various types of abuses, including
blanket challenge abuses. Solberg did not hold the statute was constitutional as applied,
or that a district attorney’s blanket challenge abuse of the statute cannot violate the
separation of powers doctrine. And in any event, Solberg can be fairly distinguished
from this case, both legally and factually.
                                STANDARD OF REVIEW
              We review an order denying a section 170.6 peremptory challenge for
abuse of discretion. (Grant v. Superior Court (2001) 90 Cal.App.4th 518, 523.) “The
abuse of discretion standard is not a unified standard; the deference it calls for varies
according to the aspect of a trial court’s ruling under review. The trial court’s findings of
fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo,
and its application of the law to the facts is reversible only if arbitrary and capricious.”
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)
                                       DISCUSSION
1. Judge King Did Not Abuse His Discretion by Denying the District Attorney’s Motion.
              Judge King’s factual findings are supported by substantial evidence, his
legal conclusion is correct, and his application of the law to the facts was not arbitrary or
capricious. Accordingly, Judge King did not abuse his discretion by denying the district
attorney’s motion to disqualify Judge Goethals.
              a. Judge King’s Factual Findings Are Supported by Substantial Evidence.
              Judge King found: (1) the disparity between the district attorney’s
disqualifications of Judge Goethals before and after February 24, 2014 was not
coincidental; and (2) the disparity ensued from Judge Goethals’ rulings that prosecutors
and police officers had committed misconduct. These factual findings are supported by
substantial evidence, as set out below.
                                            13
              The evidence is undisputed.        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. In 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.
              This dramatic change in the district attorney’s disqualifications of Judge
Goethals under section 170.6 coincided with his misconduct rulings against them in three
other cases. On February 24, 2014, in two “Mexican Mafia” cases, Judge Goethals found
a deputy district attorney intentionally failed to comply with his discovery obligations
under Brady v. Maryland (1963) 373 U.S. 83, and announced a tentative decision to
recuse that deputy district attorney from both cases as a discovery sanction.

       13
           The evidence consists of facts in the case files and other records of respondent
court, or facts that are not reasonably subject to dispute and capable of immediate and
accurate determination by resort to sources of reasonably indisputable accuracy. Judge
King properly took judicial notice of these facts. (Evid. Code, § 452, subds. (d) & (h);
People v. Thomas (1972) 8 Cal.3d 518, 520, fn. 2.)

                                                 2
              Beginning in March 2014 and continuing through March 2015, Judge
Goethals conducted a series of extraordinary hearings on defense motions in People v.
Dekraai, Orange County Superior Court (2012) No. 12ZF0128. The motions alleged
several deputy district attorneys and members of law enforcement conspired to commit
perjury, suborn perjury, obstruct justice, and intentionally violate the defendant’s
constitutional rights under Brady and Massiah v. United States (1964) 377 U.S. 201.
              The district attorney conceded the Massiah claims and Judge Goethals
concluded substantial evidence supported the Brady claims. He found two jail deputies
either lied or willfully withheld material information. Furthermore, he found the district
attorney had an actual conflict of interest which had deprived the defendant of due
process. Consequently, Judge Goethals excluded statements the defendant made to the
jailhouse informant and recused the district attorney’s office in Dekraai.
              On February 25, 2014—the day after Judge Goethals issued his tentative
ruling in the Mexican Mafia cases—the district attorney disqualified him for the first time
in a gang murder case. Since then, the district attorney has disqualified him in every
gang murder case assigned to him. Likewise, shortly after the Dekraai hearings began
the district attorney started disqualifying Judge Goethals in nongang murder cases too.
The district attorney has since disqualified him in all but three nongang murder cases.
              b. Judge King’s Legal Conclusion Is Correct.
              Judge King concluded a district attorney’s abuse of section 170.6 can
violate the separation of powers and independence of the judiciary clauses of the
California Constitution. That is correct, based on basic constitutional principles.
              “The California Constitution is ‘the supreme law of our state’ [citation],
subject only to the supremacy of the United States Constitution. (Cal. Const., art. III, §
1.)” (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 250.)
It is axiomatic that all statutes, including section 170.6, must be applied in a manner
which is consistent with the California and United States Constitutions.

                                             3
              The separation of powers clause of the California Constitution divides the
powers of the state government into three branches, and dictates that “[p]ersons charged
with the exercise of one power may not exercise either of the others except as permitted
by this Constitution.” (Cal. Const., art. III, § 3.) This clause “is violated when the
actions of one branch defeat or materially impair the inherent functions of another.”
(Steen v. Appellate Division of Superior Court (2014) 59 Cal.4th 1045, 1053.)
              “The focus in questions of separation of powers is ‘the degree to which
[the] governmental arrangements comport with, or threaten to undermine, either the
independence and integrity of one of the branches . . . or the ability of each to fulfill its
mission in checking the others so as to preserve the interdependence without which
independence can become domination.’ [Citation.]” (City of Sacramento v. California
State Legislature (1986) 187 Cal.App.3d 393, 398-399.)
              The independence of the judiciary clause (Cal. Const., art. VI, § 1) vests the
judicial power of this State in the courts. “One of the powers which has always been
recognized as inherent in courts, which are protected in their existence, their powers and
jurisdiction by constitutional provisions, has been the right to control its order of business
and to so conduct the same that the rights of all suitors before them may be safeguarded.”
(Lorraine v. McComb (1934) 220 Cal. 753, 756.)
              Taken together, these basic constitutional principles compel the conclusion
that the separation of powers clause prohibits the district attorney (an executive branch
agency) from abusing section 170.6 in any manner which materially impairs the inherent
powers of the judicial branch. (Cf. Solberg, supra, 19 Cal.3d at pp. 191-192 [powers of
court “can in nowise be trenched upon, lessened or limited by the legislature”].) This
conclusion is consistent with the rule that a district attorney cannot take any action under
section 170.6 which violates any provision of the constitution. (Cf. People v. Superior
Court (Williams) (1992) 8 Cal.App.4th 688.) It is also consistent with the rule that the
authority granted under section 170.6 “‘is not absolute and unlimited.’” (Id. at p. 698.)

                                               4
              c. Judge King’s Ruling Was Not Arbitrary or Capricious.
              Judge King denied the district attorney’s motion. He explained: “Due to
the nature and the extent of this executive action, this Court has determined that the
prosecution’s consistent filing of section 170.6 motions in murder cases for more than 18
months is a substantial and serious intrusion into the province of the judiciary. It
constitutes a threat to the independence of the Orange County judiciary and a violation of
the Separation of Powers provision of the California Constitution.”
              Judge King’s ruling applied the law to the facts. It was not arbitrary or
capricious. It did not exceed the bounds of reason, all of the circumstances being
considered, and it did not result in any miscarriage of justice. (See Denham v. Superior
Court (1970) 2 Cal.3d 557, 566.) It was not an abuse of discretion.
2. Solberg Held Section 170.6 Is Constitutional on its Face.
              In Solberg, the court reaffirmed in a criminal context, its earlier decision in
Johnson v. Superior Court (1958) 50 Cal.2d 693 (Johnson), which held in a civil context,
that section 170.6 is constitutional on its face.
              Solberg was a consolidated proceeding which considered a petition for writ
of mandate and an appeal. The court granted the petition and issued a writ of mandate on
grounds not relevant to this proceeding. (Solberg, supra, 19 Cal.3d at pp. 189-190, 204.)
As a result, the appeal became moot, and the court ultimately dismissed it. (Id. at p. 204.)
Nevertheless, because the issues raised by the appeal would “doubtless arise on remand,”
the court addressed them on their merits. (Id. at p. 190.)
              The underlying facts in Solberg were undisputed. “[A] criminal complaint
charging Tina Peoples with soliciting an act of prostitution . . . came before Judge Ollie
Marie-Victoire . . . . Defense counsel filed a motion to dismiss the charge . . . . At that
point Deputy District Attorney Edward Rudloff . . . asked to be sworn and made an oral
motion to disqualify Judge Marie-Victoire pursuant to . . . section 170.6. The judge
declined to disqualify herself . . . .” (Solberg, supra, 19 Cal.3d at p. 187, fn. omitted.)

                                               5
               “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 . . . ; Rudloff summarily renewed his motion to disqualify;
and the judge summarily denied it.” (Solberg, supra, 19 Cal.3d at p. 187.)
               “On the following day . . . 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. Judge Marie-Victoire denied the
written motion on the same ground as she had rejected the oral motions.” (Solberg,
supra, 19 Cal.3d at p. 188, fn. omitted.)
               On appeal the appellants “principally contend[ed] that section 170.6 is
unconstitutional because it violates the doctrine of separation of powers (Cal. Const., art.
III, § 3) and impairs the independence of the judiciary (Id., art. VI, § 1).” (Solberg,
supra, 19 Cal.3d at pp. 190-191.) The Solberg court responded: “In [Johnson], we
rejected these identical arguments in sustaining the constitutionality of the statute. We
have reviewed the decision in the light of the points raised in the present appeal, and we
are convinced the opinion of Chief Justice Gibson therein, properly understood, remains
sound law. For the guidance of bench and bar, however, we undertake to restate his
reasoning and relate it to the concerns now urged upon us.” (Id. at p. 191, fn. omitted.)
               A lengthy discussion followed. At the outset, the Solberg court reiterated
the basic principle of government underlying the decision in Johnson: “To put the matter
affirmatively and more simply, the Legislature may regulate the exercise of the
jurisdiction of the courts by all reasonable means.” (Solberg, supra, 19 Cal.3d at p. 192.)
It then observed, “Applying the foregoing principle in Johnson, we held that the
disqualification of trial judges is an aspect of the judicial system which is subject to
reasonable legislative regulation . . . .” (Ibid.)

                                                6
              Next the Solberg court addressed the contention “that the experience of the
courts with the actual operation of the statute during the past two decades reveals such
widespread and persistent abuses thereof as to warrant reconsideration of the question
and a holding that section 170.6 is now unconstitutional as applied.” (Solberg, supra, 19
Cal.3d at p. 194.) The court described two principal categories of abuse. “First, section
170.6 has assertedly been invoked for the purpose of ‘judge-shopping,’ i.e., of removing
the assigned judge from the case on grounds other than a belief that he is personally
prejudiced within the meaning of the statute.” (Ibid.) “Second, section 170.6 is said to
have been invoked for a variety of purely tactical advantages.” (Id. at p 195.)
              Solberg then declared: “We need not lengthen this recital by recounting
further examples of asserted abuse of section 170.6 . . . . For present purposes we assume
the charges are true. We do not condone such practices, nor do we underestimate their
effect on the operation of our trial courts. Nevertheless for a number of reasons we are
not persuaded that we should reconsider Johnson on this ground and hold the statute
invalid as applied.” (Solberg, supra, 19 Cal.3d at p. 195.) The court explained “it is
inaccurate to assert that we did not know of these abuses when we decided Johnson.”
(Ibid.) “Although we did not pause to catalog the various misuses of the statute, the
practices now complained of were clearly within the contemplation of the court. The
experience of the ensuing years has added quantitatively but not qualitatively to our
understanding of the problem.” (Id. at p. 196.)
              Solberg held: “[T]o the extent that abuses persist in the utilization of
section 170.6 they do not, in our judgment, ‘substantially impair’ or ‘practically defeat’
the exercise of the constitutional jurisdiction of the trial courts. Rather, it may be helpful
to view them as a relatively inconsequential price to be paid for the efficient and discreet
procedure provided in section 170.6. The statute thus remains a reasonable—and hence
valid—accommodation of the competing interests of bench, bar, and public on the subject
of judicial disqualification.” (Solberg, supra, 19 Cal.3d at p. 204.)

                                              7
3. Solberg Did Not Hold Section 170.6 Was Constitutional as Applied.
              Solberg did not hold section 170.6 was constitutional as applied to the facts
in that case. It is true the court used the words “as applied” three times. Yet a careful
                                                                                 14
review reveals those words were not used in the sense they are relevant here.
              First Solberg stated: “In these consolidated proceedings we are called upon
to reconsider [Johnson] in light of the experience with the statute during the intervening
two decades and as applied here in a criminal context.” (Solberg, supra, 19 Cal.3d at p.
187, italics added.) In this instance, the words “as applied” related to the fact that after
Johnson, section 170.6 was amended to apply to both criminal and civil cases.
              Later Solberg said: “It is earnestly contended, however, that Johnson is
distinguishable [and] . . . that the experience of the courts with the actual operation of the
statute during the past two decades reveals such widespread and persistent abuses thereof
as to warrant reconsideration of [Johnson] and a holding that section 170.6 is now
unconstitutional as applied.” (Solberg, supra, 19 Cal.3d at p. 194, italics added.) Here
the court was merely summarizing a contention.
              Then Solberg rejected that contention. Specifically, the court held: “We do
not condone such practices, nor do we underestimate their effect on the operation of our
trial courts. Nevertheless for a number of reasons we are not persuaded that we should
reconsider Johnson on this ground and hold the statute invalid as applied.” (Solberg,
supra, 19 Cal.3d at p. 195, fn. omitted, italics added.)
              Thus, the court in Solberg used the words “as applied” only in reference to
events and experiences which occurred after Johnson, and only in the process of
reconsidering the holding of Johnson—that section 170.6 is constitutional on its face—
and concluding it “should be reaffirmed.” (Solberg, supra, 19 Cal.3d at p. 187.)

       14
           Even if Solberg implied section 170.6 was constitutional as applied to the facts
of that case, it is only binding precedent with reference to those facts. (Western
Landscape Construction v. Bank of America (1997) 58 Cal.App.4th 57, 61.)

                                              8
4. Solberg Did Not Hold Blanket Challenges Cannot Violate the Separation of Powers.
              Solberg did not hold a district attorney’s blanket challenge abuse of section
170.6 cannot violate the separation of powers doctrine (as between the executive branch
and the judicial branch) and undermine the independence of the judiciary to such an
extent that the statute is unconstitutional as applied. Nor could this ever be true. Again
all statutes, including section 170.6, must be applied in a manner which is constitutional.
So I do not agree with the conclusion that Solberg controls the outcome here.
              Solberg only discussed blanket challenge abuses in rejecting the claim,
“that Johnson is distinguishable because it ruled on the constitutionality of section 170.6
only in a civil setting, and that in a criminal context the statute should be declared invalid
primarily because of an asserted difference in the nature of the parties and their counsel.”
(Solberg, supra, 19 Cal.3d at p. 201.) To understand this aspect of Solberg, we must look
at the case it mainly relied upon, McCartney v. Commission on Judicial Qualifications
(1974) 12 Cal.3d 512, disapproved on other grounds in Spruance v. Commission on
Judicial Qualifications (1975) 13 Cal.3d 778, 799, footnote 18 (McCartney).
              McCartney considered a recommendation that a judge be removed, rather
than censured, for various acts of misconduct. “One of those acts was to engage in angry
and excited dialogues with deputy public defenders who filed affidavits of prejudice
against him under section 170.6. [Citation.] Among the judge’s proffered defenses was a
claim that the affidavits were filed pursuant to a policy of the public defender’s office to
prevent him from presiding over criminal trials.” (Solberg, supra, 19 Cal.3d at p. 203.)
              McCartney said: “We find this ‘defense’ to be a slim reed . . . . [¶]
[D]isrespect on the part of the public defender cannot serve to justify petitioner’s
injudicious response. As previously indicated, the Legislature clearly foresaw that the
peremptory challenge procedure would be open to such abuses but intended that the
affidavits be honored notwithstanding misuse. [Citations.]” (McCartney, supra, 12
Cal.3d at pp. 537-538, citing, inter alia, Johnson, supra, 50 Cal.2d at p. 697.)

                                              9
              At this point, McCartney recited in a footnote: “The blanket nature of these
filings, however, in itself reflects a measure of impropriety. As the objective of a
verification is to insure good faith in the averments of a party [citation], the provision
in . . . section 170.6 for the showing of prejudice by affidavit requires a good faith belief
in the judge’s prejudice on the part of the individual party or counsel filing the affidavit
in each particular case. [Citations.] The ‘blanket’ nature of the written directive issued
by the public defender arguably contravened this requirement of good faith . . . .”
(McCartney, supra, 12 Cal.3d at p. 538, fn. 13.)
              This footnote in McCartney became a subject of disagreement in Solberg.
(Compare Solberg, supra, 19 Cal.3d at pp. 203-204 (maj. opn. of Mosk, J.), with id. at
pp. 206-207 (conc. & dis. opn. of Tobriner, J.).) Regardless of what one thinks about that
disagreement in Solberg, the constitutionality of blanket challenges was not an issue in
McCartney, so at most the McCartney court’s statements about them are persuasive dicta
not binding rulings. (See Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169.)
Further, to the extent that McCartney said anything about the constitutionality of section
170.6, it merely reiterated the holding of Johnson—the statute, as enacted by the
Legislature, is constitutional on its face, despite the potential for this type of abuse.
              With these thoughts in mind, consider what Solberg actually said: “The
argument is that in all criminal actions the plaintiff and its attorney remain the
same . . . . This uniformity . . . permits the ‘institutionalization’ of many of the abuses
discussed herein, and in particular the abuse known as the ‘blanket challenge.’” (Solberg,
supra, 19 Cal.3d at pp. 201-202, fns. omitted.) The court continued, “Upon close
analysis we conclude this contention is different not in kind but only in degree from the
arguments rejected in Johnson, and that the difference does not warrant a contrary result.
To begin with, we do not believe the self-limiting aspects of abuse of section 170.6
discussed hereinabove are inoperative in the criminal context.” (Id. at p. 202.) “More
importantly, the issue of ‘blanket challenges’ is not new to this court.” (Ibid.)

                                              10
               Then Solberg commented on the blanket challenge discussion in
McCartney. ‘“We acknowledged [citation] that ‘the entire policy itself may have been an
affront to the court’s dignity if it stemmed from public defenders’ dissatisfaction with
[Judge McCartney’s] “hard line” performance as a district attorney rather than a good
faith belief in prejudice.’ (Italics deleted.) [¶] . . . We felt compelled, nevertheless, to
speak to the ‘blanket’ nature of these filings.” (Solberg, supra, 19 Cal.3d at p. 203.)
               Solberg concluded, “There is thus no doubt that in McCartney we strongly
disapproved of the practice of ‘blanket challenges,’ and we reaffirm that position herein.
But it is also manifest from McCartney that we do not believe the practice vitiates the
statute . . . . In short, the possibility of the filing of ‘blanket challenges’ does not
distinguish the present criminal proceeding from Johnson, and the reasoning of that
decision is equally applicable to the current version of the statute, governing both civil
and criminal cases. [Citation.]” (Solberg, supra, 19 Cal.3d at pp. 203-204.)
               I see nothing in this discussion of blanket challenges which supports the
lead opinion conclusion that Solberg “prevents respondent court or this court from
entertaining the argument that the district attorney’s use of peremptory challenges
resulted in a separation of powers violation.” That the practice does not vitiate the statute
on its face does not mean it cannot result in a separation of powers violation as applied.
5. Solberg Can Be Fairly Distinguished From this Case, Both Legally and Factually.
               Unlike my colleagues, I believe Solberg can be “fairly distinguished”
(Trope v. Katz (1995) 11 Cal.4th 274, 287) from this case, both legally and factually.
The analysis and comparison below reveals the separation of powers issues are different,
and the character and magnitude of the blanket challenge abuses are different. These
legal and factual differences warrant a different result, because the ratio decidendi of
Solberg simply does not encompass the legal issue or the facts presented in this case. As
a result, Solberg has little or no force as controlling precedent here. (See generally 9
Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 509, p. 572.)

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               a. The Separation of Powers Issues Are Different.
               Solberg concerned the separation of powers between the legislative branch
and the judicial branch. The question was: Did the Legislature violate the separation of
powers doctrine when it enacted section 170.6 to regulate the judiciary? On this question
Solberg reaffirmed the holding of Johnson that the statute, as enacted by the Legislature,
did not violate the separation of powers doctrine, despite the potential for various types of
abuses, including blanket challenges. (Solberg, supra, 19 Cal.3d at pp. 186-187.)
               This case concerns the separation of powers between the executive branch
and the judicial branch. The question is: Did the district attorney violate the separation
of powers clause when it used section 170.6 to retaliate against a judge? Solberg did not
consider this question. Again it only considered similar abuses in deciding they do not
“vitiate[] the statute” as enacted by the Legislature. (Solberg, supra, 19 Cal.3d at p. 203.)
               Hence, I cannot agree with the lead opinion conclusion that: “In sum and
on balance, we are bound by Solberg in our examination of the separation of powers issue
presented.” While the constitutional provisions at issue here and in Solberg are the same
(Cal. Const., art. III, § 3, art. VI, § 1), the separation of powers questions are not.
               b. The Character of the Blanket Challenge Abuses Are Different.
               In Solberg, “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.” (Solberg, supra, 19 Cal.3d at p. 188.) They disagreed with her
“views on the legal issue relating to the discriminatory enforcement of prostitution laws.”
(Id. at p. 206.)
               Here Judge King found the district attorney’s motions to disqualify Judge
Goethals were motivated by their discontent with his misconduct rulings against them.
They were based on the fact he called them out on their misconduct, and they had “the
appearance of attempting to intimidate, punish, and/or silence Judge Goethals, and to
send a warning to the other local judges that similar rulings will produce a similar fate.”

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              In short, the district attorney’s disqualification motions were not “premised
on the fact that ‘the People don’t feel that [they] can get a fair trial in cases of these kinds
in [Judge Goethals’] court.’” (Solberg, supra, 19 Cal.3d at p. 206.) This is important
because, as the court said in Solberg, “section 170.6 explicitly recognizes such belief as a
sufficient ground for disqualification . . . .” (Id. at p. 193.) It does not recognize the
desire to intimidate, punish or silence as a sufficient ground for disqualification.
              c. The Magnitude of the Blanket Challenge Abuses Are Different.
              In Solberg the district attorney disqualified Judge Marie-Victoire in four
prostitution cases. Here the district attorney disqualified Judge Goethals in 55 murder
cases. This is noteworthy because while the small number of disqualifications in Solberg
can be viewed “as a relatively inconsequential price to be paid for the efficient and
discreet procedure provided in section 170.6” (Solberg, supra, 19 Cal.3d at p. 204), the
same cannot be said of the comparatively large number of disqualifications here.
                                       CONCLUSION
               The district attorney’s systematic abuse of section 170.6 undermined the
principle of judicial independence and violated the separation of powers doctrine. We are
not powerless to stop it. The petition should be denied.




                                                    THOMPSON, J.




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