I have long been a critic -- like many others -- of blanket 170.6 peremptory challenges. They're bad for all the usual reasons; most critically, they permit repeat players (e.g., district attorney's offices) to effectively transfer a judge out of a particular department (e.g., felony or murder cases) by papering that judge in every single matter of that type. A decade ago, I talked about a Court of Appeal opinion that seriously questioned the validity of such blanket challenges on separation of powers grounds, notwithstanding the fact that the panel (understandably) felt bound by a 1977 California Supreme Court case that upheld even blanket 170.6 challenges as constitutionally permissible. At the time, I said that the Court of Appeal's opinion addressed an incredibly important opinion, and was "a long time coming."
Today's opinion was a long time coming as well.
The California Supreme Court now overrules its 1977 opinion in part and holds that blanket peremptory challenges to a judge can potentially violate separation of powers principles. It accordingly establishes a new test that's similar to Batson to isolate what it calls "bad faith" blanket 170.6 challenges from those that are constitutionally permissible. The long and short of today's ruling is that blanket papering of judges will be substantially more difficult in the future than they are today.
And for that, I applaud the Court. Well done.
I also appreciate that (1) the opinion is unanimous, and (2) that the Court in this regard is even more "progressive" than it was 50 years ago, in 1977. Today's opinion makes the world at least a marginally better place than the opinion rendered by that same tribunal half a century ago. That's progress. I'm pleased.
Do I have marginal disagreements with the opinion? Perhaps not surprisingly: Yeah, I do.
For one thing, I wasn't a huge fan of how Justice Groban initially pitched the result. His principal argument at the outset consisted of an admission that stare decisis is important but that the "world had changed" since 1977 sufficient to justify a departure from the Court's prior opinion.
That seems somewhat weak sauce to me. Do we have more cases these days? Yes. Do we have more specialized courts than previously? Of course. Do changes like that somewhat increase the dangers of blanket peremptory challenges? Sure.
But, in all honesty, that's not why the practice is unconstitutional. It had the same horrible effects then as it does now. Those harms may be slightly more serious now, but those changes are not why today's decision is correct. The California Supreme Court was simply wrong in 1977 when it validated blanket peremptory challenges. Seriously wrong. And the passage of time has only highlighted and magnified that error. It's not that the Court was right then but changes since then justify a departure. It was wrong then and it is wrong now, and I would have preferred an opinion that forthrightly said so.
I'm also not especially sold on the Court's remedial scheme. Sure, it's definitely better than what we have now (which is nothing). But I worry that it's too soft. Yes, parties should sometimes be able to establish a prima facie case of an impermissible blanket challenge. Yes, that'll require the party to submit an actual justification for their challenge rather than the barebones, conclusory statement of purported bias that 170.6 currently requires. So far, so good. (I foresee some problems with those first two prongs, but they're relatively minor, at least in the context of blanket challenges.)
It's the third stage of the process that I'm worried is too soft. Justice Groban says that all that's required at that stage is for the party making the challenge to establish a "subjective good faith" belief in the challenge. The key word, in my mind, being "subjective" (rather than objective). As long as the party making the challenge itself has a real -- i.e., not made up -- belief that the judge is biased, then the challenge is valid. Even if that subjective belief is entirely unreasonable.
That lets parties off too easily, in my view, and as a practical matter will permit a wide variety of practically blanket challenges to persist.
Parties (and lawyers) who paper judges under 170.6 almost always have a reason why they think the judge is biased against them. It might not be a good reason, but they can nonetheless come up with a reason. I suspect they'll continue to do so, even under the new rule in which that reason may (at the third stage) occasionally need to be articulated.
It's great that Justice Groban's opinion boxes out some reasons that are impermissible. You can't say you disagree with a judge's legal ruling. You can't say that they're too soft (or too hard) on crime. You can't (obviously) challenge them based on their race or gender or things like that. Great.
But there's still tons of leeway for articulated "reasons" behind a challenge. You can say that you think the judge is disrespectful. You can say you think the judge doesn't like your type of client. You can say the judge doesn't seems to like you personally. You can say virtually anything; after all, there probably is an underlying reason why you do, in fact, want to bounce the judge from your case, and most of those reasons are likely permissible under today's ruling.
And, critically, all that you have to do is to show that you actually believe what you're saying. That you have a subjective belief that such bias exists. Your view doesn't have to be reasonable, or even tethered to reality. You just gotta convince the judge that you believe it.
That's too easy a showing, in my view. We already have lawyers who routinely file blanket 170.6 challenges notwithstanding the requirement that these claims be made under oath; i.e., that they swear under penalty of perjury that they actually think the judge is biased (even though we all know full well that the advocate is really just saying that they're prefer a different judge). Do you really think that adding a requirement of subjective belief adds much of a constraint here?
Will this process limit blanket challenges somewhat? Yes. It will. So I'm happy for today's result.
But it could have been stricter. Particularly vis-a-vis the final prong of the relevant inquiry.