Metropolitan News-Enterprise


Friday, September 18, 2020


Page 1


C.A. Eschews Literal Reading of Judge-Dinging Statute

District Attorney Office’s Peremptory Challenge to Judge in Habeas Case Was Untimely Although It Had Not Yet Made an Appearance, Justice Lamar Baker Declares


By a MetNews Staff Writer


The Court of Appeal for this district held yesterday that, notwithstanding statutory language that a peremptory challenge to a judge with an all-purpose assignment in a criminal case may be filed by a party within 10 days of making an appearance, a challenge by the Los Angeles County District Attorney’s Office was tardy even though it had not yet appeared.

Justice Lamar Baker of Div. Five wrote the opinion denying a petition for a writ of mandate by which the disqualification of Los Angeles Superior Court Judge Edmund Willcox Clarke Jr. was sought.

Clarke was assigned on Feb. 20 to act on a petition for a writ of habeas corpus filed by an inmate convicted of second degree murder. On March 20, he issued an in-chambers order that the District Attorney’s Office file an informal response within 45 days.

On April 15, that office filed a peremptory challenge pursuant to Code of Civil Procedure §170.6.

Wording of Statute

That section provides:

“If directed to the trial of a criminal cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 days after the appearance.”

Clarke on April 16 denied the motion as untimely. Seeking a writ on April 27, the prosecutorial office asserted that the judge was wrong—that the statute gave it 10 days to file a challenge after making an appearance, and it had not yet appeared.

Baker’s Opinion

Baker responded:

“We do not read this language the way the District Attorney does, i.e., to permit the District Attorney to wait over a month to file its peremptory challenge despite having received notice from the court of Judge Clarke’s assignment.

“Though the District Attorney believes she had not yet made an appearance in the action because the informal response had not been filed (which in her view means she had 55 days to file a Section 170.6 motion: the 45 days allotted by Judge Clarke pursuant to a sua sponte extension of time plus ten days thereafter), that is not the correct understanding of the section 170.6 all purpose assignment deadline in a habeas proceeding.”

He proclaimed:

“In a habeas case, timeliness is to be measured from court-initiated notice of an all purpose assignment and, only where such notice has not been given, from ten days after the People’s appearance.

“This holding not only comports with the statutory language, it best fits the realities of habeas corpus practice. By California statute and rule, habeas petitions must be decided without unnecessary delay.”

The jurist added:

“Permitting a party who concededly has notice of the judge assigned to sit on its hands (as here, for a month or more) before filing a peremptory challenge serves no salutary purpose and instead creates just the sort of unnecessary delay the law abhors.”

Judge’s Retirement

The opinion has no practical effect in the case at hand. Clarke, who officially retires on Thursday, has been using up available vacation time; his last day on the bench was Aug. 28.

A remittitur is scheduled to be issued Nov. 17. There is no mention in the opinion of mootness.

The case is People v. Superior Court (Reagan), B305626.


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