People ex rel. Air Resources Board v. Superior Court

Opinion

Procedural History

The People of the State of California ex rel. State of California Air Resources Board (CARS) petitioned this court for a writ of prohibition directed to the Superior Court of the State of California in and for the County of Los Angeles and Eugene E. Sax, as judge pro tempore of the superior court, respondents (respondents). Western Oil and Gas Association, a nonprofit corporation et al., are the real parties in interest (WOGA). We denied the petition without hearing. The Supreme Court granted CARB’s petition for hearing and transferred the matter to itself. It then retransferred the case to this court, directing us to “issue an alternative writ of mandate commanding the Los Angeles County Superior Court to vacate all of its orders in action No. C-246284, entitled Western Oil and Gas Association et al. v. California Air Resources Board, made subsequent to the referral to the Chairperson of the Judi

Factual Background

WOGA is the plaintiff in action number C 246284 filed against CARB in the respondent superior court. This underlying action is a petition for a writ of mandate wherein WOGA challenged certain regulations adopted by CARB. Respondent Eugene E. Sax, a retired judge of the superior court, was stipulated to by the parties as judge pro tempore to hear and determine the underlying matter. The stipulation provided that Judge Sax was to be paid for such service at the rate of $100 per hour. Subsequently, on December 31, 1980, Judge Sax entered judgment on behalf of WOGA and issued a writ of mandate compelling CARB to repeal certain air quality standards. CARB’s appeal from that judgment is currently pending before this court.

On January 28, 1981, WOGA filed a motion pursuant to Code of Civil Procedure section 1110b (hereafter 1110b motion) requesting an order that CARB be ordered to repeal its regulations immediately, notwithstanding the pending appeal. CARB filed opposition to the motion upon the ground, inter alia, that the stipulation that Judge Sax serve as judge was limited to those matters specified in the original proceedings and did not include postjudgment proceedings and that the hearing of the 1110b motion must be before an active judge of the respondent court. CARB, in March 1981, filed a declaration pursuant to Code of Civil Procedure section 170, subdivision 1, alleging that Judge Sax was disqualified from ruling on its objection to his hearing the 1110b motion because he had a financial interest therein in that he would be paid $100 per hour to hear and determine the motion if he ruled that he did have jurisdiction. Within the statutory period, Judge Sax filed an answer denying his disqualification, and in compliance with the provisions of Code of Civil Procedure section 170, subdivision 5, the matter was ultimately referred to the Chairperson of the Judicial Council for the assignment of another judge to hear the question of the disqualification of Judge Sax. The Chairperson of the Judicial Council has not to this date made such an assignment. Respondent superior court subsequently

Discussion

In its opposition to the writ of mandate, WOGA has called to our attention the fact that in the answer of Judge Sax to the declaration of disqualification filed by CARB, Judge Sax denied that he was disqualified, but nevertheless consented that the matter be heard by some other judge. Pursuant to our request, counsel has lodged with this court a certified copy of the “Answer of Eugene E. Sax, Temporary Judge, Under C.C.P. § 170” in action number C 246284. On page 7 of his answer, Judge Sax states, “However, not withstanding [sic] the foregoing, if all of the parties wish to stipulate to have another judge hear and determine either or both the issue of my jurisdiction to hear plaintiffs’ § 1110b motion and the issue of plaintiffs’ said motion itself, I have no objection thereto.” WOGA suggests to this court that the hearing on the 1110b motion be transferred by respondent superior court to some other judge in view of the consent by Judge Sax that such action be taken.

CARB insists that there is in fact no consent by Judge Sax because his statement is conditional, and thus equivocal, because Judge Sax stated, “... if all of the parties wish to stipulate to have another judge ... I have no objection thereto.” This court does not interpret Judge Sax’ offer to be conditional, but rather to be merely his manner of expressing his lack of objection to the assignment of the matter to another judge. In any event, the posture of the case at this time is that the only objection to going forward with the motion here involved emanates from CARB. The respondent court has indicated its willingness to go ahead with the case, the challenged judge has indicated his lack of objection thereto, and WOGA is striving mightily to have its motion heard.

The argument by CARB that the statutory provisions of Code of Civil Procedure section 170 must be rigidly adhered to and that a judge cannot at the same time allege that he is not disqualified and yet consent to the matter being transferred to another judge was laid to rest by the California Supreme Court more than 50 years ago. “When this cause came on for trial, objection was made to proceeding before the judge who had taken and entered the pleas, upon the ground that he was biased and prejudiced against the defendant. The judge filed a denial of bias or prejudice, but, upon the ground that he desired to avoid arresting the trial by a protracted hearing with reference to his qualifications, and in order that the cause might be heard and determined with the least possible delay, consented to retire from the case. The presiding judge thereupon made and caused to be entered an order that the trial proceed before another judge of the superior court .... The procedure followed was in strict accord with the terms of the constitutional provision, supra, and with section 170 of the Code of Civil Procedure.” (People v. Hickman (1928) 204 Cal. 470 , 480 [ 268 P. 909 ]; also see Stern v. Stern (1948) 83 Cal.App.2d 608 [ 189 P.2d 536 ].)

The Supreme Court again dealt with this matter in Donovan v. Superior Court (1952) 39 Cal.2d 848 [ 250 P.2d 246 ], wherein petitioners sought to annul a judgment of contempt levied against them by the superior court. Petitioners contended that Judge Bartlett, who heard the contempt proceedings, was without jurisdiction because of an affidavit alleging the disqualification of Judge Rhodes having been filed and not having been disposed of in the manner prescribed by section 170 of the

We have thus reached the following conclusions. A party challenging a judge for cause has no right to demand that the lawsuit be derailed in order to provide his targeted judge an opportunity for vindication. The only legitimate interest of a party who claims that a judge is disqualified is to obtain a qualified judicial officer. If the challenged judge insists upon a hearing, as he has a right to do, the only function of the challenging party is to demonstrate at the hearing, if he can, that his challenge was based on substance and was not merely a dilatory tactic.

The purpose of Code of Civil Procedure section 170 is to insure an impartial and unbiased judicial proceeding; it is not a mere procedural device enacted for the benefit of reluctant litigants seeking to avoid a day of reckoning.

A writ of mandate shall issue directing respondent superior court to vacate all orders made in case number C 246284 subsequent to the referral to the Chairperson of the Judicial Council of the declaration of disqualification of the Honorable Eugene E. Sax, judge pro tempore, with the exception of the order assigning Judge Older to hear the mat

Lillie, Acting P. J., and Hanson (Thaxton), J., concurred.

Petitioner’s application for a hearing by the Supreme Court was denied December 3, 1981. Bird, C. J., and Tobriner, J., did not participate therein.