Metropolitan News-Enterprise

 

Wednesday, June 22, 2022

 

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Court of Appeal:

Oral §170.6 Challenge Was Valid Though Not Under Oath

Panel Says Judge Waived Any Defect by Treating Lawyer’s Statement That He Would Be Filing

Disqualification Motion As an Oral Challenge, Then Denying It, Saying It Was Untimely

 

By a MetNews Staff Writer

 

An attorney made a valid Code of Civil Procedure §170.6 peremptory challenge to a judge by oral motion, even though he was not under oath as required by the statute, because the judge, in denying the challenge, waived the right to require that it be sworn to, Div. Three of the Fourth District Court of Appeal held yesterday.

The opinion marked a rare instance where a judge is construed to have waived a right rather than a party having effected a waiver.

 Signing the unpublished “by the court” opinion were Presiding Justice Kathleen O’Leary, Justice Thomas M. Goethals, and Orange Superior Court Judge Linda S. Marks, sitting by assignment.

The jurists ordered issuance of a writ of mandate commanding the Orange Superior Court to grant the peremptory challenge made by an attorney for Jacob Aaron Cirt, who is charged with a felony drug offense. The disqualified judge is Jeff Ferguson who presided at a Sept. 16, 2021 hearing pursuant to Penal Code §1275.1 to determine if bail that had been posted had come from an illegal source.

Judge’s Comment

Ferguson, who had not handled any previous hearing in the case, inquired if any witnesses were present that morning and the lawyer advised that they were not presently available, although documentation was. The judge said:

“I at this time lack confidence that you are going to be able to sustain your burden of evidence today.”

This colloquy ensured:

“[COUNSEL]: I will be filing a 170.6 affidavit.

“THE COURT: Denied.

“[COUNSEL]: Excuse me?

“THE COURT: It’s denied. You just appeared here. I just called the case.

“[COUNSEL]: No, Your Honor. The court has—

“THE COURT: It’s untimely. Take up a writ.

“[COUNSEL]: It’s not untimely, Your Honor. The court hasn’t heard anything significant.

“THE COURT: I just did. I just heard some proceedings.

“[COUNSEL]: That’s not a rule for a 170.6.”

At a break in the proceeding, the lawyer filed a written motion pursuant to §170.6. Told of that, Ferguson responded:

“Yeah. It was denied. It’s untimely.”

At an afternoon proceeding, the hold on bail was removed. However, writ relief was sought to block Ferguson from presiding at the preliminary hearing.

Superior Court’s Decision

Such relief was sought initially in the Court of Appeal, which bumped the matter back to the Superior Court. That court found that no challenge had yet been made when the lawyer said he “will be filing” one and, in any event, what he uttered could not qualify as an oral motion under section 170.6 because it was not under oath.

Code of Civil Procedure §170.6(a)(2) provides that a lawyer may establish prejudice on the part of a judge by “an oral statement under oath, that the judge…before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge….”

A writ was again sought in the Court of Appeal. In granting it, the jurists declared:

“Although there is some question whether petitioner made a proper oral 170.6 motion, respondent court waived any defects in the motion when it considered and ruled on the motion and denied the peremptory challenge as untimely, not defective.”

Treated As Motion

They elaborated:

“Although counsel’s oral statement that he intended to file a 170.6 affidavit suggests that it had not yet occurred, it is apparent from the reporter’s transcript that respondent court construed and considered counsel’s oral statement as a peremptory challenge to the court. Respondent court could have asked counsel to clarify whether he was actually making the motion, or the court could have denied the motion as defective, but instead, respondent court elected to rule on the motion and deemed the oral peremptory challenge untimely.

“The superior court suggests counsel’s oral attempt at a peremptory challenge was insufficient because it was not an oral statement made under oath. But clearly counsel cannot administer an oath to himself. If the court understood that counsel was making a 170.6 motion, as the court apparently did, and the court required full compliance with the statute, then the court should have administered an oath, or directed the court clerk to administer an oath….”

Not Untimely

The panel went on to say:

“Respondent court having waived counsel’s defects in making the peremptory challenge, we find that petitioner is entitled to relief because at the time counsel made his peremptory challenges to the court, no hearing had commenced, and even if it had, respondent court made no determination of a contested fact relating to the merits of the proceeding.”

Sec. 170.6(a)(2) provides that a judge who has presided over an aspect of the case “not involving a determination of contested fact issues relating to the merits” may be disqualified.

The panel added:

“Even if the morning proceeding could be construed as a hearing, the record fails to identify the determination of a contested fact by respondent court, especially since the court had already acknowledge that it had no information about the source of petitioner’s bail. If respondent court made no determination of a contested fact, then petitioner’s peremptory challenge to the court after the morning break was not untimely and should have been accepted and granted by respondent court.”

The case is Cirt v. Superior Court, G060846.

Judge Drew Admonishment

Ferguson gained his post through election in 2014. He was publicly admonished by the Commission on Judicial Performance on May 31, 2017 for posting a false allegation on the North Orange County Bar Association Facebook page in 2016 concerning a deputy district attorney who had mounted an election challenge to a judge.

Candidate Karen Schatzle was opposing Orange Superior Court Judge Scott Steiner, who had been censured by the commission in 2014 for sexual conduct in chambers. On April 26, 2016, Schatzle posted:

“Scott Steiner uses his office for sex and yet so many aren’t concerned, crazy politics!”

Ferguson responded:

“Karen Shatzle [sic] has sex with defense lawyer whike [sic] shw [sic] is a DA on his cases and nobody cares. Interesting politics.”

Ferguson was also found to have improperly “friended” three lawyers who appeared before him.

 

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