Here's a neat little case that might be of particular interest to readers in more rural areas. Even for those readers who live and practice in The Big City, it also raises a statutory interpretation issue in a context that I've never before considered.
The basic scoop is this: CCP 170.6 describes when and how a litigant may exercise a peremptory challenge against a judge. The usual rule -- the one with which we're most familiar -- says that you've got 10 days to paper the judge, and the clock runs from the point in which the litigant receives actual notice that the case is assigned to that judge for all purposes. So once you get actual notice of the assignment, the clock starts ticking.
But there's an exception to that rule in 170.6(a)(2). If you're in a county that only has one authorized judge, your clock (which now becomes a 30-day clock) starts ticking once you appear, rather than when you get a notice of assignment for all purposes.
When you think about it, that makes sense. You know you're in, say, the Merced County Superior Court, and we know you know that because you've appeared there. Merced only has one authorized judge. Ergo, you definitely know the identity of your judge, and your time to challenge her accordingly starts then. There's no need for a notice of assignment for all purposes to start the clock.
But here's the thing. There used to be several counties with only one authorized judge. But now there aren't any.
So is 170.6(a)(2) irrelevant?
Not according to the trial court here. Because while there aren't currently any entire counties with only one judge, there are still plenty of branches that only have one assigned judge. For example, here, the Nevada County Superior Court has more than one authorized judge, but the Truckee branch of that court only has one assigned judge. So according to the trial court, the "one-judge" rule of 170.6 applies. You know that you were assigned to the Truckee branch (since you appeared here), you know that branch only has one assigned judge, ergo your clock started ticking upon your appearance before that judge, not upon the later date when you received formal actual notice that the case was assigned to that judge for all purposes. The People of the State of California agree, and support the trial court's view of the statute on appeal.
But the Court of Appeal disagrees. The statute talks about courts, not branches. It talks about authorized judges, not assigned judges. So it only applies to counties with one judges, not branches. Statute's clear.
I agree that's what the statute says, and that the Court of Appeal gets it right.
And I say that notwithstanding one of the creative -- but ultimately wrong -- arguments advanced by the California Attorney General. She says that paragraph (a)(2) would be impermissible "surplusage" if the statute were interpreted the way the Court of Appeal does since there are no longer any one-judge counties. Which is right, at least in part. At this point, 170.6(a)(2) is indeed meaningless.
But that doesn't mean it's impermissible. It's not the interpretation that made the statute meaningless. That result arose instead from the changes in the outside world. And that's just fine.
Here's my analogy. Imagine a statute, passed by Congress in May of 1964 (over the President's veto, no doubt), that says: "It shall be a felony for President Lyndon Baines Johnson to lift a dog up by its ears." The statute is never repealed, and stays on the books. Fast forward to 2016, and -- in a stunning development -- a contested Republican convention nominates a little-known 45-year old California resident named (you guessed it) Lyndon Baines Johnson as its nominee, and Mr. Johnson is elected a the general election. Right after his inauguration, in his first official act, now-President Johnson lifts up a passing dog by his ears.
President Johnson is promptly prosecuted, and his defense is that the statute only applies (and was only meant to apply) to the President Lyndon Baines Johnson, not any President Lyndon Baines Johnson. The prosecutor responds, correctly, that since "the" President Johnson is dead, that would make the statute surplusage.
That's true. But it's totally fine. New President Johnson wins. Sometimes statutes are made meaningless by intervening events. Like here. We need not interpret statutes to avoid such a result.
Still, a neat little argument. Even if it's wrong.
