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Curle v. Superior Court (Gleason) (2001) 24
Cal.4th 1057 ,
103 Cal.Rptr.2d 751; 16 P.3d 166
[No. S080322. Feb. 8, 2001.]
WILSON CURLE, a Judge of the Superior Court, Petitioner,
v. THE SUPERIOR COURT OF
SHASTA COUNTY, Respondent; ANDREW MADISON GLEASON et al., Real
Parties in Interest.
(Superior Court of Shasta County, No. 98F1725, Norris Goodwin fn. * , Judge.)
(The Court of Appeal, Third Dist., No. C031822, 72 Cal.App.4th 543.)
(Opinion by George, C.J., expressing the unanimous view of the court.) [24 Cal.4th 1059]
COUNSEL
Karen Keating Jahr, County Counsel, and John L. Loomis, Deputy County Counsel, for Petitioner.
No appearance for Respondent.
Law Offices of Berg and Associates, Eric Alan Berg, Gary Roberts and
Janet S. Manrique for Real
Party in Interest Andrew Madison Gleason.
No appearance for Real Party in Interest the People.
OPINION
GEORGE, C.J.-
Respondent superior court ordered that petitioner Wilson Curle, a judge of the same superior court, be disqualified from conducting further proceedings in a criminal action against real party in interest Andrew Madison Gleason. Respondent agreed with Gleason's contention that an individual aware of the facts reasonably might entertain a doubt whether Judge Curle would be able to be impartial in the action. (Code Civ. Proc., § 170.1, subd. (a)(6)(C).) fn. 1 The People did not seek appellate review of respondent's ruling. Judge Curle, however, filed a petition for writ of mandate in the Court of Appeal seeking to overturn the order disqualifying him. After first determining that a superior court judge disqualified for cause pursuant to section 170.1 properly may seek writ review of the disqualification order, the Court of Appeal issued a peremptory writ of mandate directing respondent to vacate its previous order and to enter a new order denying Gleason's motion for disqualification.
We granted review to determine whether the Court of Appeal has authority
to hear a petition for writ of mandate filed by a
superior court judge seeking to overturn an order requiring the judge's
disqualification for cause and, if so, whether Judge Curle
properly was disqualified. As we shall explain, the exclusive means
for review of a disqualification order is by a petition for writ
of mandate filed by one or more of the parties to the underlying proceeding
in accordance with section 170.3, subdivision (d). A superior court judge
against whom a statement of disqualification has been filed is not a party
to the proceeding within the
meaning of this provision. Therefore, a disqualified judge may not
file a petition for writ of mandate challenging the disqualification order,
and the Court of Appeal lacks authority to entertain such a petition. Thus,
we have no occasion to decide whether [24 Cal.4th 1060] Judge Curle properly
was disqualified. We shall reverse the judgment of the Court of Appeal.
I
Pursuant to a plea agreement, Gleason pleaded guilty to one count charging the continuous sexual abuse of a child under the age of 14 years. (Pen. Code, § 288.5.) The written agreement stated that if the court denied probation, Gleason would be sentenced to no more than 12 years in state prison. If the court granted probation, Gleason would receive a stipulated sentence of 16 years in state prison, with execution of that sentence suspended subject to conditions of probation. Judge Curle accepted the plea after presiding over a hearing at which Gleason waived his rights and expressly agreed to the terms of the plea agreement.
Although the probation report recommended that Gleason be granted probation
subject to specified conditions, it expressed
reservations regarding probation in light of several circumstances,
including the nature of the offense and Gleason's background.
The report stated that these circumstances ordinarily would call for
a state prison commitment, but the probation officer found
that Gleason's candor and willingness to participate in an approved
treatment program indicated that he was willing to seek help
and to redirect his life.
At a subsequent hearing, Judge Curle stated that the disposition recommended
by the probation report followed that agreed to
by Gleason and the People, and that the judge's tentative plan was
to follow the recommendation of the probation officer. The
prosecutor appearing at this hearing--who was not the deputy district
attorney who had negotiated the plea agreement--disagreed with the recommendation
of probation, however. In addition, an attorney representing the victim's
mother expressed the view that Gleason should be sentenced to state prison.
Defense counsel objected to the prosecutor's position, contending that
the previously negotiated disposition included an agreement to follow the
recommendation of the probation officer. Accordingly, defense counsel contended,
the prosecutor violated the terms of the plea agreement by advocating a
prison sentence. After reviewing the written plea agreement, however, Judge
Curle concluded that the agreement reserved discretion on his part to decide
whether to sentence Gleason to state prison. Judge Curle further stated
that he, too, had difficulties with the probation report, and that he previously
had mentioned his concerns in this regard to the probation officer's supervisor.
Judge Curle ultimately indicated that "at this point" he would not follow
the recommendation to grant probation. At Gleason's request, Judge Curle
scheduled a sentencing hearing. [24 Cal.4th 1061]
Before the sentencing hearing occurred, however, Gleason retained new
counsel and filed a statement of disqualification for
cause against Judge Curle. (§ 170.3, subd. (c)(1).) Gleason asserted
that because the judge had engaged in ex parte
communications with the probation officer's supervisor, Judge Curle
had exceeded his role as an impartial adjudicator and
engaged in his own investigation. Because there was no record of Judge
Curle's conversation with the supervisor, Gleason
contended, the judge presumably obtained knowledge and information
regarding disputed evidentiary facts unknown to defense
counsel and the prosecutor. For these reasons, and because Judge Curle
would be a material witness concerning his
conversation with the supervisor, Gleason contended that Judge Curle
must be disqualified for cause pursuant to section 170.1,
subdivision (a)(1) (the judge has personal knowledge of disputed evidentiary
facts) and (a)(6) (a person aware of the facts
reasonably might entertain a doubt whether the judge would be able
to be impartial). In a supplemental declaration, Gleason's
counsel indicated that Judge Curle also demonstrated bias by stating
at the hearing that he was denying probation, contrary to the recommendation
of the probation report, without having considered evidence and argument
from the defense on behalf of
Gleason, and solely because the prosecutor and counsel for the victim's
mother opposed probation.
Judge Curle filed a written verified answer to the statement of disqualification.
(§ 170.3, subd. (c)(3).) The answer set forth the
following information. Upon reading the probation report, Judge Curle's
initial reaction was that Gleason should be committed to state prison.
The judge had no recollection of his conversation with the probation officer's
supervisor, but any such conversation did not alter his reservations regarding
the report or dispel his impression that he was the only individual with
concerns regarding a grant of probation. Despite these concerns, for several
reasons Judge Curle initially had planned to follow the recommendation
that Gleason be granted probation: (1) the People had offered the possibility
of probation, (2) both the probation report and the report regarding Gleason's
mental condition were favorable, and (3) Judge Curle was unfamiliar with
treatment programs for sex offenders and therefore chose to defer to the
experts. When the prosecutor also expressed reservations regarding the
recommendation of probation, however, Judge Curle was surprised. The judge
did not indicate at the hearing that he had made a final decision not to
grant probation, but only that he tentatively favored a 12-year prison
sentence.
Pursuant to established procedure, the Honorable Norris M. Goodwin (a
retired judge from Butte County) was assigned to sit
as a judge in respondent superior court for the purpose of deciding
the question of Judge Curle's disqualification. (§ 170.3, subd. (c)(5).)
Based upon the papers filed by [24 Cal.4th 1062] Gleason and Judge Curle
(§ 170.3, subd. (c)(6)), Judge Goodwin determined that the parties,
with the knowledge and consent of Judge Curle, entered into the plea agreement
with the clear expectation that the court would follow the probation officer's
recommendation. Judge Goodwin further determined that Judge Curle changed
his view that he would grant probation after hearing only from the prosecutor,
thus giving the appearance of catering to the district attorney's office
and ignoring the plea agreement previously approved by Judge Curle. Although
Judge
Goodwin concluded that the conversation with the probation officer's
supervisor did not influence Judge Curle or create an
appearance of bias, Judge Goodwin further concluded that "an outsider,
with knowledge of the facts [and] the agreement[,]
could easily believe that [J]udge Curle should have followed the [probation]
report," and that his decision not to do so conveyed the impression that
Judge Curle had exhibited a bias in favor of the district attorney. Accordingly,
Judge Goodwin ruled that Judge Curle was disqualified because of an appearance
of bias (§ 170.1, subd. (a)(6)(C)), but not actual bias.
The People did not participate in the disqualification proceeding or
seek appellate review of respondent superior court's order
disqualifying Judge Curle. Purporting to act in his official capacity
as a judge of respondent court, and represented by county
counsel, Judge Curle filed in the Court of Appeal a petition for writ
of mandate to compel respondent to vacate its order and to
enter a different order denying Gleason's motion for disqualification.
The Court of Appeal issued an alternative writ. Gleason filed a return
and a motion to strike the petition on the ground that Judge Curle lacked
standing to file the writ petition and that the appellate court had no
jurisdiction to act on it.
The Court of Appeal held that Judge Curle was authorized to seek writ
review of respondent's order disqualifying him from
further participation in the underlying criminal proceeding. The appellate
court further concluded that there was no substantial
evidence supporting respondent's threshold determination that the plea
agreement required the adoption of the probation officer's sentencing recommendation.
According to the Court of Appeal, the disqualification order was based
solely upon this false premise. Therefore, the court directed the issuance
of a peremptory writ of mandate requiring respondent to deny Gleason's
statement of disqualification.
We granted Gleason's petition for review to determine whether the Court
of Appeal properly granted the relief sought in the
petition for writ of mandate.
II
[1a] Gleason contends that Judge Curle lacked legal authority to initiate
an original writ proceeding in the Court of Appeal
seeking to overturn the [24 Cal.4th 1063] disqualification order. Gleason
relies upon section 170.3, subdivision (d) (hereafter
section 170.3(d)), which states: "The determination of the question
of the disqualification of a judge is not an appealable order
and may be reviewed only by a writ of mandate from the appropriate
court of appeal sought within 10 days of notice to the
parties of the decision and only by the parties to the proceeding."
(§ 170.3(d), italics added.) According to Gleason, Judge
Curle is not a party to the proceeding within the meaning of this provision
and therefore could not seek review of the order.
Judge Curle, on the other hand, asserts that he is a party to the disqualification
proceeding in the trial court and thus is one of the parties to which section
170.3(d) refers.
Section 170.3(d) specifies the exclusive appellate remedy with regard to a statutory claim that the superior court erred in granting or denying a motion to disqualify a judge. (People v. Williams (1997) 16 Cal.4th 635, 652; People v. Brown (1993) 6 Cal.4th 322, 334; People v. Hull (1991) 1 Cal.4th 266, 275.) Because this provision states that "only . . . the parties to the proceeding" may seek a writ of mandate to overturn a disqualification order, our evaluation of the respective positions of Gleason and Judge Curle depends upon the proper statutory interpretation of the phrase "parties to the proceeding."
[2] "Our role in construing a statute is to ascertain the Legislature's
intent so as to effectuate the purpose of the law. [Citation.] In determining
intent, we look first to the words of the statute, giving the language
its usual, ordinary meaning. If there is no
ambiguity in the language, we presume the Legislature meant what it
said, and the plain meaning of the statute governs.
[Citation.]" (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.)
If the Legislature has provided an express definition of a
term, that definition ordinarily is binding on the courts. (Adoption
of Kelsey S. (1992) 1 Cal.4th 816, 826; People v. Dillon
(1983) 34 Cal.3d 441, 468.) Furthermore, we consider portions of a
statute in the context of the entire statute and the statutory scheme of
which it is a part, giving significance to every word, phrase, sentence,
and part of an act in pursuance of the legislative purpose. (DuBois v.
Workers' Comp. Appeals Bd. (1993) 5 Cal.4th 382, 388.)
[1b] We begin with an overview of the statutory scheme governing disqualification
of a trial judge for cause. A judge shall be
disqualified for cause if any of the grounds specified in section 170.1
is true, including if "[f]or any reason . . . a person aware of
the facts might reasonably entertain a doubt that the judge would be
able to be impartial" (§ 170.1, subd. [24 Cal.4th 1064]
(a)(6)(C)). "If a judge who should disqualify himself or herself refuses
or fails to do so, any party may file with the clerk a written verified
statement objecting to the hearing or trial before the judge and setting
forth the facts constituting the grounds for
disqualification of the judge." (§ 170.3, subd. (c)(1).) "[T]he
judge may file a consent to disqualification . . . or the judge may file
a written verified answer admitting or denying any or all of the allegations
contained in the party's statement and setting forth any additional facts
material or relevant to the question of disqualification." (§ 170.3,
subd. (c)(3).)
If a judge refuses to recuse himself or herself, "the question of disqualification
shall be heard and determined by another judge
agreed upon by all the parties who have appeared or, in the event they
are unable to agree within five days of notification of the
judge's answer, by a judge selected by the chairperson of the Judicial
Council . . . ." (§ 170.3, subd. (c)(5).) "The judge deciding
the question of disqualification may decide the question on the basis of
the statement of disqualification and answer and such written arguments
as the judge requests, or the judge may set the matter for hearing as promptly
as practicable. If a hearing is ordered, the judge shall permit the parties
and the judge alleged to be disqualified to argue the question of disqualification
and shall for good cause shown hear evidence on any disputed issue
of fact." (§ 170.3, subd. (c)(6).)
As established above, the statutes governing judicial disqualification
contain an express provision regarding appellate review:
"The determination of the question of the disqualification of a judge
. . . may be reviewed only by a writ of mandate . . . sought . . . only
by the parties to the proceeding." (§ 170.3(d), italics added.)
In construing the phrase "parties to the proceeding" in this provision,
the Court of Appeal determined that, although a judge
alleged to be disqualified is not a party to the underlying action
or proceeding over which he or she is to preside, such a judge is
a party to the disqualification proceeding. According to the appellate
court, the proceeding to which section 170.3(d) refers is
"the disqualification proceeding itself, as distinguished from the
action in which the challenged judge has been barred from
presiding." Because a judge alleged to be disqualified for cause may
file an answer and oppose the disqualification motion in the
trial court, the Court of Appeal reasoned that it would be anomalous
to deny that judge the opportunity to advance the same
arguments in a writ petition in an effort to retain his or her role
as the presiding judicial officer in the underlying action. Thus, the
Court of Appeal held that the "parties to the proceeding," within the
meaning of section 170.3(d), are the judge alleged to be
disqualified and the parties in the underlying action. [24 Cal.4th
1065]
We disagree. Even assuming the word "parties" in section 170.3(d) were
susceptible to an interpretation that includes an
allegedly disqualified judge who files an answer to a statement of
disqualification--an assumption that we shall explain is
unfounded 3/4 the governing statutes compel the conclusion that such
a judge is not one of "the parties to the proceeding"
referred to in section 170.3(d). (Italics added.) Although the hearing
to decide a disqualification motion pursuant to section
170.3 might be considered a proceeding as that term ordinarily is understood,
such a hearing is not a proceeding as defined in
section 170.5, which sets forth controlling definitions of several
terms used in sections 170 through 170.5.
A "proceeding" is defined as "the action, case, cause, motion, or special
proceeding to be tried or heard by the judge." (§
170.5, subd. (f), italics added.) fn. 2 The only reasonable construction
of this language is that "the judge" is the individual alleged to be disqualified
from hearing or trying a matter that has not yet been decided; therefore,
the proceeding referred to must be the underlying proceeding. (See, e.g.,
§§ 170.1, subd. (a) ["A judge shall be disqualified if . . .
: [¶] (1) The judge has personal knowledge of disputed evidentiary
facts concerning the proceeding"], 170.3, subd. (b)(4) [grounds for disqualification
may arise after the judge has made one or more rulings but "before the
judge has completed judicial action in a proceeding"].) fn. 3 Under the
Court of Appeal's reasoning, however, "proceeding" necessarily would refer
to the disqualification motion previously decided by a different judge
whose only role is to hear that motion. Such a conclusion would be inconsistent
with the statutory definition specifying that the "proceeding" is a matter
to be heard or tried by the judge. Thus, contrary to the Court of Appeal's
conclusion, because section 170.5, subdivision (f), establishes that the
"proceeding" to which section 170.3(d) refers is the underlying proceeding,
the "parties to the proceeding" within the meaning of section 170.3(d)
are the litigants in the underlying action or proceeding--and not the judge
alleged to be disqualified from presiding over that action or proceeding.
This construction of section 170.3(d) is supported further by a consideration
of the meaning of the word "party." Although the
Code of Civil Procedure does not include an express definition of this
term, certain statutes provide guidance in ascertaining its
meaning. For example, civil and criminal actions are defined as ordinary
proceedings in a court of justice in which [24 Cal.4th
1066] one party prosecutes another party. (Code Civ. Proc., §
22; see also id., § 30 [defining civil action]; Pen. Code, §§
683, 684 [defining criminal action and parties thereto].) Similarly, the
parties in a special proceeding are the plaintiff and the defendant. (Code
Civ. Proc., § 1063.) [3] (See fn. 4.) , [1c] Thus, the usual, ordinary
meaning of the word "party" as used in the Code of Civil Procedure refers
to the litigants in the underlying matter and does not include the individual
judge who presides over an action or special proceeding. fn. 4
This ordinary meaning of "party" also applies to that term as used in the statutory scheme governing disqualification for cause. (§§170.1-170.5.) For example, a judge shall be disqualified if, among other things, the judge served as a lawyer for "any party in the present proceeding" or the judge has a financial interest in "a party to the proceeding." (§ 170.1, subd. (a)(2), (3).) A judge who determines himself or herself to be disqualified "may ask the parties and their attorneys whether they wish to waive the disqualification," except where "[t]he judge has a personal bias or prejudice concerning a party." (§ 170.3, subd. (b)(1), (2)(A).) "[A]ny party" may file a statement of disqualification against the judge. (§ 170.3, subd. (c)(1).)
Furthermore, section 170.3, subdivision (c)(6), expressly distinguishes
between the parties to the underlying proceeding, the
judge presiding over that proceeding, and the judge deciding the question
of disqualification. This provision states in part: "The
judge deciding the question of disqualification . . . shall permit
the parties and the judge alleged to be disqualified to argue the
question of disqualification . . . ." (Ibid.) If the Legislature had
intended the term "parties" to include an allegedly disqualified
judge who may participate in the disqualification hearing conducted
pursuant to section 170.3, there would have been no need in the foregoing
passage to mention specifically that the judge alleged to be disqualified
may present argument on the question.
Furthermore, had the Legislature intended to permit an allegedly disqualified
judge to seek a writ of mandate to overturn a
disqualification order, it could have included similar language in
section 170.3(d), such as: "The determination of the question of
the disqualification of a judge . . . may be reviewed only by a writ
of mandate . . . sought . . . only by the parties to the
proceeding and/or the judge alleged to be disqualified." The Legislature
did not include such language, however, and we may
not presume that the Legislature intended the word "parties" to have
a meaning in [24 Cal.4th 1067] section 170.3(d) different
from that in section 170.3, subdivision (c)(6). Moreover, as established
above, elsewhere in the statutory scheme governing
disqualification for cause the Legislature consistently used the term
"parties" to refer to the litigants in the underlying proceeding,
and the term "judge" to refer to the allegedly disqualified judge.
[4] "It is elementary that, absent indications to the contrary, 'a
word or phrase . . . accorded a particular meaning in one part or portion
of the law, should be accorded the same meaning in
other parts or portions of the law . . . .' [Citation.]" (County of
San Bernardino v. City of San Bernardino (1997) 15 Cal.4th
909, 926.) We find no indication that the Legislature intended the
term "parties" to have a special meaning in section 170.3(d)
different from the meaning of that word as used elsewhere in sections
170.1 through 170.5.
[1d] Therefore, the phrase "parties to the proceeding" in section 170.3(d)--construed
in light of the statutory definition of the
term "proceeding" as well as in the context of the rest of section
170.3 and the entire statutory scheme governing disqualification
for cause--clearly refers only to the litigants in the underlying action
or proceeding and does not include a disqualified judge.
Because section 170.3(d) expressly states that only the parties to
the proceeding may seek writ review of a disqualification
order, the Legislature clearly intended that such parties possess the
exclusive right to file a petition for writ of mandate pursuant
to this provision. (See Guedalia v. Superior Court (1989) 211 Cal.App.3d
1156, 1159-1160.)
Even if we were to determine that the phrase "parties to the proceeding"
in section 170.3(d) is ambiguous, thus permitting
reference to extrinsic aids to ascertain its meaning, the legislative
history of the statute expressly contradicts the interpretation
advanced by Judge Curle and adopted by the Court of Appeal. The provision
was drafted by a committee of the State Bar,
which provided an analysis to the Senate Judiciary Committee. This
analysis states in relevant part: "There is no present statutory provision
on appellate review of disputed disqualification decisions. Exclusive review
by writ of mandate is intended to provide as speedy an appellate determination
as possible while still permitting evolution of standards through case-by-case
adjudication. The right to seek review by mandate is limited to the parties
(thereby excluding the judge) . . . ." (Sen. Com. on Judiciary, Analysis
of Sen. Bill No. 598 (1983-1984 Reg. Sess.) at p. 15 [provided by Professor
Preble Stolz, Chair of the State Bar Com. on the Admin. of Justice], italics
added.) fn. 5 We previously have relied upon this analysis in construing
the scope of section [24 Cal.4th 1068] 170.3(d) (People v. Hull, supra,
1 Cal.4th at p. 273), and it unmistakably supports our
interpretation of the statute in the present case.
Judge Curle and the Court of Appeal rely upon several decisions in support
of their contrary interpretation of section 170.3(d),
although they acknowledge that no prior case has decided the issue
presented here. In Estate of Di Grazia (1993) 13
Cal.App.4th 681, the question was whether a trial court may impose
sanctions under section 128.5 in favor of a judge alleged to be disqualified
for cause pursuant to section 170.1. The Court of Appeal held that in a
disqualification proceeding, the challenged judge is a "party" within the
meaning of section 128.5, subdivision (a), which authorizes a trial court
to order a party to pay expenses incurred by another party as a result
of tactics that are frivolous or intended solely to cause delay. The court's
opinion reasons that the disqualification proceeding amounts to a
separate trial of an issue distinct from those in the main action, and
in which the "the judge appears as a party for all practical purposes."
(13 Cal.App.4th at p. 684.) The court also found that its interpretation
furthered the purpose of section 128.5, because challenges for cause may
be used improperly for the sole purpose of causing delay. (13 Cal.App.4th
at p. 685.)
Estate of Di Grazia is not instructive here, however, because its holding
is limited to the meaning of the word "party" in section
128.5. The opinion does not analyze the term "party" as used in the
disqualification statutes or consider whether the judge is one of the "parties
to the proceeding" for purposes of the restricted writ review procedure
specified in section 170.3(d). To the
extent the decision characterizes the judge as a party to the disqualification
proceeding "for all practical purposes," that dictum
goes far beyond the issue presented by the case and is not supported
by any analysis of the language in the disqualification
statutes or the purpose to be served by those provisions.
The Court of Appeal in the present case also relied upon dicta in Ng
v. Superior Court (1997) 52 Cal.App.4th 1010 (Ng),
which held that a trial judge has no standing to oppose a party's writ
petition challenging the judge's ruling upon an issue related
to the underlying litigation, if the issue does not affect the court's
operating procedures or budget. Although the petition in Ng also raised
an issue regarding the disqualification of the trial judge, the judge's
return did not address that [24 Cal.4th 1069] issue. Nevertheless, the
opinion makes the following observations: "Judges have standing to contest
attempts to disqualify them. Code of Civil Procedure section 170.3, subdivision
(c), contemplates an adversary proceeding in which the judge may take an
active part if litigants seek to disqualify a judge for cause. The
judge's participation in the appellate process concerning such issues is
therefore also appropriate. [Citations.]" (Id. at p. 1019.) These statements
are accurate to the extent they indicate that section 170.3 authorizes
a trial judge to participate in a disqualification proceeding in the superior
court. With regard to participation in the appellate process, however,
the decision in Ng did not consider whether an allegedly disqualified judge
is a party within the meaning of section 170.3 and did not analyze the
language of section 170.3(d) or even cite that provision. Therefore, this
decision also provides no guidance in determining whether section 170.3(d)
permits a disqualified judge to file a petition for writ of mandate to
overturn the disqualification order. fn. 6
The opinion in Ng, supra, 52 Cal.App.4th at page 1019, cites three decisions
in support of its statement that a trial judge
properly may participate in the appellate process concerning disqualification
issues. Judge Curle relies upon two of these
decisions to bolster his interpretation of section 170.3(d). Both cases,
however, were decided before the enactment of section
170.3(d) and in any event did not analyze the propriety of the trial
judge's participation in appellate proceedings. (Solberg v.
Superior Court (1977) 19 Cal.3d 182, 189 [municipal court judge appealed
from superior court judgment requiring her
disqualification]; Central Pac. Ry. Co. v. Superior Court (1931) 211
Cal. 706, 713, 720 [trial judges apparently filed
responses to writ petition regarding their disqualification].) The
third opinion cited in Ng for the proposition that a disqualified
judge may participate in the appellate process--Calhoun v. Superior
Court (1958) 51 Cal.2d 257--contains no indication that
the trial judge actively participated in the writ proceeding in the
appellate court.
In addition to his contentions regarding the proper interpretation of
section 170.3(d), Judge Curle advances several reasons
supporting his view that disqualified trial judges should be able to
seek review of a disqualification order. He observes that if no
party files a petition for writ of mandate to overturn the order, there
is no remedy for an erroneous disqualification ruling.
Permitting the trial judge to raise the issue in the Court of Appeal,
Judge Curle asserts, serves the salutary purpose of furthering
the accuracy [24 Cal.4th 1070] and integrity of the factfinding process
and allowing a disqualified judge the opportunity to "clear his [or] her
name." Judge Curle maintains that this purpose is especially important
because the allegedly disqualified judge has the greatest motivation to
litigate the issue of his or her own impartiality and because serious disciplinary
consequences may follow a determination that a judge is biased. (See In
re Rasmussen (1987) 43 Cal.3d 536, 538 [trial judge disciplined for various
acts of misconduct, including refusal to disqualify himself from
a proceeding in which he had communicated substantive matters to a party
in the absence of counsel].) In addition, Judge Curle states, such a determination
could affect a contested election in which the judge is a candidate. According
to Judge Curle, denying a judge the opportunity to litigate the issue in
the appellate court is fundamentally unfair.
To the extent Judge Curle suggests that public policy would better be
served by allowing a trial judge to seek writ review of a
disqualification order, we are not free to substitute our judgment
for the Legislature's contrary determination that only the parties
to the underlying proceeding should be permitted to seek appellate
review of such an order. The adequacy of the appellate
remedy specified by the Legislature is not before us. (People v. Hull,
supra, 1 Cal.4th at p. 275.) Judge Curle appears to
suggest that limiting review of disqualification orders in accordance
with section 170.3(d) violates certain unspecified rights of a
disqualified judge and is procedurally unfair, but he does not assert
that the statute is unconstitutional or should be held invalid on these
grounds. In any event, although a ruling disqualifying a judge for cause
under certain circumstances might provide evidence of misconduct warranting
judicial discipline, such discipline could not be imposed without further
proceedings before the Commission on Judicial Performance, where
the judge would have a full and fair opportunity to respond to any allegations
of misconduct, as well as an opportunity to petition for review in this
court. (See Cal. Const., art. VI, § 18, subd. (d); Cal. Rules of Court,
rule 935; Rules of Com. on Jud. Performance, rules 109-135.) Moreover,
many grounds warranting disqualification for cause do not suggest that
the judge necessarily has engaged in improper conduct.
Statutes governing disqualification for cause are intended to ensure
public confidence in the judiciary and to protect the right of
the litigants to a fair and impartial adjudicator--not to safeguard
an asserted right, privilege, or preference of a judge to try or
hear a particular dispute. (See People v. Thomas (1972) 8 Cal.3d 518,
520; North Bloomfield G. M. Co. v. Keyser (1881)
58 Cal. 315, 322-323; see also Alexander v. Primerica Holdings, Inc.
(3d Cir. 1993) 10 F.3d 155, 164-166 [strictly limiting
participation by trial judge in writ proceeding seeking his [24 Cal.4th
1071] disqualification for cause under federal statute].)
The parties in the underlying proceeding may choose not to contest
a disqualification order for numerous reasons, including a
wish to avoid unnecessary delay. When a disqualified judge unilaterally
seeks review on his or her own behalf, however, the
litigation is suspended pending a determination of the judge's claims
by the appellate courts. Such delay thwarts the legislative
intent underlying section 170.3(d)--to promote judicial economy and
to provide "a speedy and fundamentally fair avenue to
litigants who make a for-cause challenge." (People v. Hull, supra,
1 Cal.4th at p. 273, italics added.) Indeed, in the present
case Judge Curle's attempt to overturn his own disqualification has
delayed the sentencing of a criminal defendant approximately two years,
despite the circumstance that the defendant remains in county jail and
both the prosecution and the defense are willing to have another judge
impose sentence immediately. After reviewing the language and history of
the statutory scheme governing disqualification for cause, we do not believe
that the Legislature intended to authorize an appellate proceeding brought
solely to vindicate a disqualified judge's individual interest in overturning
a finding by the superior court that grounds for disqualification exist.
As we observed in a different context, " 'the premise under which the judiciary
operates is straightforward: if no individual party finds it worth his
or her while to champion the cause and seek judicial review, then review
will not occur.' [Citation]." (Municipal Court v. Superior Court (Gonzales)
(1993) 5 Cal.4th 1126, 1131.) fn. 7
In sum, the plain language of section 170.3(d) construed in light of
the statutory scheme governing disqualification for cause
reveals a clear intent to restrict the right to seek review of a disqualification
order to the litigants in the underlying proceeding.
Therefore, we conclude that section 170.3(d) does not authorize a disqualified
judge to file a petition for writ of mandate seeking to overturn a disqualification
order. Because this statute provides the exclusive appellate remedy with
regard to disqualification of a trial judge, a judge disqualified for cause
may not seek appellate review of the disqualification order, and an appellate
court lacks authority to overturn such an order upon the petition of the
judge. Thus, the Court of Appeal erred in granting the relief requested
by Judge Curle. Because we conclude that Judge Curle is not authorized
by law to seek appellate review of the order [24 Cal.4th 1072] disqualifying
him, we do not reach, and express no opinion upon, the merits of his claim
that the order is unsupported by substantial evidence.
III
The judgment of the Court of Appeal is reversed, and the cause is remanded
to that court with directions to dismiss the petition
for writ of mandate and to discharge the alternative writ.
Mosk, J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
FN *. Retired judge of the former Justice Court for the Biggs Judicial
District, assigned by the Chief Justice pursuant to article
VI, section 6 of the California Constiution.
FN 1. Further undesignated statutory references are to the Code of Civil Procedure.
FN 2. Neither the Court of Appeal nor the parties considered this
definition. We solicited and received supplemental letter
briefs regarding the effect, if any, of the definition upon this case.
FN 3. The statute defines "judge" as "judges of the municipal and
superior courts, and court commissioners and referees." (§
170.5, subd. (a).)
FN 4. In an extraordinary writ proceeding initiated in the appellate
court to review or restrain an action by the superior court,
the superior court and, in rare cases, the individual judge, may be
designated as the respondent. (8 Witkin, Cal. Procedure (4th
ed. 1997) Extraordinary Writs, § 164, pp. 964-965.) This circumstance,
however, does not alter our interpretation of the term
"party" as used in the statutory scheme governing disqualification
of trial judges.
FN 5. Senate Bill No. 598 (1983-1984 Reg. Sess.) was not enacted,
but the measure subsequently was reintroduced, with
modifications not relevant here, as Senate Bill No. 1633 (1983-1984
Reg. Sess.), which was enacted into law. The former bill
included language identical to that in section 170.3(d), providing
that only the parties to the proceeding may seek writ review of
an order disqualifying a trial court judge. (Sen. Bill No. 598 (1983-1984
Reg. Sess.) as introduced Feb. 28, 1983, § 7, pp.
11-12.)
FN 6. To the extent that Estate of Di Grazia, supra, 13 Cal.App.4th
681, and Ng v. Superior Court, supra, 52
Cal.App.4th 1010, are inconsistent with our conclusion herein, they
are disapproved.
FN 7. Counsel for both Judge Curle and Gleason acknowledged at
oral argument that they are unaware of any federal or state
decision endorsing a right of a disqualified judge unilaterally to
initiate an appellate proceeding to overturn his or her
disqualification, and our own research has disclosed no such decision.
One recent California case upon which Judge Curle relied at oral argument
actually supports our conclusion that a judge possesses no such right.
In James G. v. Superior Court (2000) 80 Cal.App.4th 275, 279, the Court
of Appeal stated that even though a superior court in limited circumstances
might be able to appear to defend itself in a writ proceeding, the court
may not initiate a writ proceeding.