Metropolitan News-Enterprise


Monday, October 4, 2004


Page 1


Judge Improperly Denied Bid to Disqualify Her, C.A. Rules

Jurist May Have Had ‘Sense of Ownership’ of Her Domestic Violence Caseload, Fourth District Says


By DAVID WATSON, Staff Writer


The judge who handles domestic violence cases in the Orange Superior Court’s Laguna Niguel courthouse improperly denied as untimely a defendant’s bid to disqualify her, the Fourth District Court of Appeal has ruled.

Writing for Div. Three, Justice Kathleen O’Leary suggested Thursday that Judge Pamela L. Iles—“despite the best of intentions”—may have “become so embroiled in the cause of domestic violence” that she developed “a sense of ownership” over the cases before her to the extent that “an appearance of impropriety is created.”

O’Leary, joined by Justice Eileen C. Moore and Presiding Justice David G. Sills, said Iles was wrong to deny the motion Rodney Hemingway made to disqualify her under Code of Civil Procedure Sec. 170.6. Hemingway, charged with domestic battery, made the motion nine days after appearing with counsel for arraignment.

Nunc Pro Tunc

Iles initially said she was taking the matter under submission, but later filed a purported nunc pro tunc order indicating she had intended to deny the motion so that Hemingway could seek appellate review.

The Court of Appeal ruling is at least the second in four months to rebuff an attempt by a superior court to characterize its procedures in a way that would limit the ability of defendants to “paper” judges.

In June, this district’s Court of Appeal ruled in Ruiz v. Appellate Division of the Superior Court (People), 04 S.O.S. 2887, that the Los Angeles Superior Court’s method of assigning misdemeanor cases for trial in several courthouses was not a “master calendar” system. While in general a disqualification motion may be made a few days before a trial or hearing begins, under a master calendar system the challenge must be brought at the time the case is assigned to a judge for trial.

The Orange Superior Court argued that Hemingway’s challenge was untimely because Iles had earlier assigned the case to herself for all purposes. Under Sec. 170.6, where an assignment for all purposes has been made, a disqualification motion must be brought within 10 days after the defendant is notified of the assignment.

As Justice Robert Mallano had in writing for this district’s Div. One in Ruiz, O’Leary cautioned that local rules and procedures which have the effect of limiting Sec. 170.6 challenges must be promulgated in a way that gives defendants and their lawyers adequate notice of those consequences. While establishing courts dedicated to handling domestic violence cases was “to be commended,” she said, she added that “judicial officers handling domestic violence cases must conform their conduct to the law.”

The appellate jurist explained:

“The structure and procedures of domestic violence courts cannot be governed by local custom and tradition, but must be governed by existing law and implemented by rules adopted in compliance with California Rules of Court, rule 981. This provision requires that each court publish its local rules controlling the practice or procedure of a court, or judge, and make copies available for distribution to attorneys and litigants.”

No Delegation

O’Leary conceded that, though Iles was sitting as a magistrate when she purportedly first assigned the case to herself, the Rules of Court permit a presiding judge or criminal court supervising judge to delegate to another judge the power to make all-purpose assignments. But the record was “totally devoid of any evidence” that there had been any such delegation to Iles, she said.

Nor, she declared, had the presiding judge issued a “blanket order” assigning all domestic violence cases in the courthouse to Iles’ courtroom. Even granting that the order cited by the Superior Court, which had been issued by a previous presiding judge, had been impliedly adopted by Presiding Judge Frederick P. Horn, it dealt with distributing workload and specified where domestic violence cases should be filed, but “failed from its inception to establish any ‘one judge’ policy,” O’Leary said.

In fact, she noted, the policy never mentioned Iles or her department and required that cases ready for trial be sent to a different specific department to be assigned. That procedure, O’Leary observed, was consistent with a master calendar court, not with a direct calendar system.

“Should the presiding judge choose to delegate any aspect of his or her authority to another judge,” she commented, “adequate notice must be given so litigants and lawyers can make intelligent decisions regarding the filing of disqualification motions.”

Neither the Fourth District nor this district relied on due process considerations in finding the disqualification motions were wrongly overruled. But both Mallano and O’Leary noted the constitutional dimension of the rights protected by the disqualification statute.

O’Leary wrote:

“The right to exercise a peremptory challenge under section 170.6 is a substantial right and an important part of California’s system of due process that promotes fair and impartial trials and confidence in the judiciary....Courts must refrain from any tactic or maneuver that has the practical effect of diminishing this important right.”

She added that Iles also erred in attempting to “correct” her order taking the Sec. 170.6 motion under submission by entering a nunc pro tunc order, declaring:

“We take this opportunity to remind trial courts of the basic rules.

“A court must make an instant determination as to the validity of a properly made section 170.6 peremptory challenge. If the motion is properly made, the disqualification takes effect instantaneously and requires the court to transfer the cause immediately for reassignment.”

The case is Hemingway v. Superior Court (People), 04 S.O.S. 5320.


Copyright 2004, Metropolitan News Company