Metropolitan News-Enterprise


Friday, June 11, 2004


Page 1


Court of Appeal Rules Misdemeanor Defendants May ‘Paper’ Downtown Judges After Assignment for Trial


By a MetNews Staff Writer


The Los Angeles Superior Court’s method for assigning downtown, East Los Angeles and Hollywood misdemeanor cases to a courtroom for trial is not a “master calendar” system under which lawyers wishing to disqualify a judge must do so at the time the assignment is made, this district’s Court of Appeal ruled yesterday.

Justice Robert Mallano of Div. One—a former presiding judge of the Superior Court—said that while the method used in the court’s Central District might meet the definition of a master calendar court adopted in People v. Superior Court (Lavi) (1993) 4 Cal.4th 1164, it does not provide attorneys with adequate notice that objections to a proposed trial judge must be raised when the assignment to that judge is made.

As described by Mallano, the Superior Court’s practice is for limited jurisdiction criminal cases at four Central District facilities to be assigned to a specific courtroom for pretrial hearings. When a case is ready for trial, the judge in that courtroom consults with an assistant supervising judge or a court coordinator to identify a judge who is available to try it.

When misdemeanor defendant Javier Ruiz appeared for trial in Div. 53 in October of 2003, his case was transferred to Judge Richard F. Walmark in Div. 52. When Ruiz arrived in Walmark’s courtroom, the deputy public defender representing him filed a challenge under Code of Civil Procedure Sec. 170.6.

Walmark ruled the disqualification motion was untimely. Though in general Sec. 170.6 permits a judge to be challenged, based on an unsupported allegation of prejudice, at any time before a trial or hearing begins, the law includes several exceptions, among them a “master calendar” exception.

Sec. 170.6(a)(2) provides that if the challenge is “directed to the trial of a cause where there is a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial.”

Ruiz filed a writ petition with the Superior Court’s Appellate Division and, after that was summarily denied, with the Court of Appeal, which ordered the Appellate Division to refer the matter for findings. The Appellate Division referred the matter to the criminal courts supervising judge, who in turn referred it to Judge Patricia Schnegg of the court’s misdemeanor panel.

Mallano noted that Schnegg’s declaration asserted that under the court’s procedures, “[w]hen the direct set court assigns a case for trial to another bench officer, or announces that he or she will keep the case for trial, that court is deemed to act as a master calendar court.” He conceded that the procedure appeared to be a master calendar under Lavi, in which the Supreme Court declared that “[f]or the master calendar rule to apply, there must be a true master calendar assignment of a ready case to a ready courtroom.”

But Mallano said Ruiz’s writ petition posed a question different from that confronted by the high court in Lavi.

“[T]he issue before the court in Lavi,” Mallano explained, “was whether a court that had been labeled a master calendar was acting in a master calendar capacity when it assigned a case that was not ‘a ready case to a ready courtroom.’....The question here is the opposite: whether a court that does not bear the label master calendar and has not provided advance notice that it is deemed to be such is a master calendar for purposes of section 170.6 merely because on the direction of the assistant supervising judge it assigns trial-ready cases to ready courts.”

He reasoned:

“It is unrealistic to expect all counsel, including those who may primarily practice in other counties, to be aware of the unwritten rules for assignment of cases in the central district as well as other locations where they practice and to determine whether a 1993 decision of the California Supreme Court has transformed the trial courtroom in which they are appearing into something that may be deemed a master calendar for purposes of section 170.6.”

Schnegg’s declaration stated that it would “create a logistical nightmare and most definitely result in the dismissal of some cases” if attorneys were permitted to file challenges to judges after arriving in their courtrooms for trial. In some cases, she warned, no other courtroom would be available; even if one were, once the case were reassigned the attorney for the other side might object to that judge.

Mallano agreed that the declaration “set forth serious administrative concerns,” but he went on to say:

“[T]he lack of any official designation or even informal notice that these courts are acting as master calendars leaves counsel guessing when and where a section 170.6 challenge must be filed....[W]hile we are aware of no precedent for individual trial courts to act as surrogate master calendars, it may be that new rules or procedures can be fashioned that would require a section 170.6 challenge to be filed in the division that sends a trial ready case to a trial ready courtroom. Nevertheless, in the interim, given the current practice in the Central District of the Los Angeles County Superior Court, the master calendar rule cannot be imposed against defendants whose cases are being transferred for trial from one direct set courtroom to another within the district.”

A Superior Court spokesperson said the court would review the decision, and quoted Criminal Courts Supervising Judge David Wesley as saying that if there is a procedure that needs to be changed, modified or corrected, the court will do so.

But the spokesperson added:

“He doesn’t agree that it is a questionable procedure.”

Deputy Public Defender Al Menaster, the acting head of the office’s Appellate Branch, said he “respectfully” disagreed with Schnegg’s contention that allowing challenges to be made in front of the judge assigned to try the case would lead to dismissals. If a judge is disqualified on a last-day case, speedy trial laws permit an extra day to bring the matter to trial, he said.

“I just don’t think it’s that big a deal,” he said. “It happens all the time.”

While Mallano appeared to suggest that a change in local rules or better procedures for notifying attorneys of local practice might be enough to resolve the matter without a change in the method used for assigning cases for trial, Menaster questioned whether designating each direct-set court as a master calendar court would suffice.

“It would have to really be a master calendar court,” Menaster said, not just a direct-set court deemed to be a master calendar court whenever it assigns a case elsewhere for trial.

The case is Ruiz v. Appellate Division of the Superior Court (People), 04 S.O.S. 2887.


Copyright 2004, Metropolitan News Company