In Re Harrington

California Court of Appeal Oct 5, 1948 No. Crim. 4267Published

Before: Wilson

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Holding. A trial judge lacks jurisdiction to determine their own disqualification when a party files an affidavit alleging sufficient facts of bias; consequently, a judgment rendered by such a judge is void.

Issues

Whether an affidavit of bias and prejudice contained sufficient facts to require the disqualification of the trial judge under Code of Civil Procedure section 170.
Whether a trial judge has the authority to rule on their own disqualification after a formal objection is filed.
Whether a judgment is void if rendered by a judge who failed to refer a disqualification challenge to another judge.

Disposition. granted

Quotations verified verbatim against the opinion

“Since the judge who heard the case was not qualified at the time of the hearing to act, it follows that by virtue of a void judgment and commitment petitioner is held in custody from which he is entitled to be released.”

WILSON, J.

Petitioner, a boy about 11% years of age, was charged in the Superior Court of Contra Costa County with the crime of murder. That court, after a hearing had in session as a juvenile court, found that he was guilty of the crime charged and that he came within the provisions of section 700 (m) of the Welfare and Institutions Code. Thereupon the court committed him to the California Youth Authority. He is now in the custody of the superintendent of the Fred C. Nelles School for Boys at Whittier and petitions for his release on habeas corpus.

When the cause came on for hearing before the Honorable Harold Jacoby, a judge of said court, petitioner filed with the clerk of the court and with the trial judge, in the manner prescribed by section 170 of the Code of Civil Procedure, a written objection under oath to the trial judge, together with a written statement of facts in support of his objection, to wit, the judge’s bias and prejudice against petitioner. The statement sets forth the reasons why, in petitioner’s opinion, the trial judge was disqualified to hear any issue of law or fact in the matter then before him. The trial judge disregarded the objections, declared that he was not disqualified, and ordered the cause to proceed to trial immediately. Petitioner objected to such procedure, to the taking of testimony, and to the determination of any question of law or fact by Judge Jacoby until his qualifications should be passed upon by another judge in the manner provided by law. (Code Civ. Proc., § 170.) The judge overruled all objections and proceeded with the trial which resulted in the commitment of petitioner as above recited. The foregoing facts are not controverted by respondent’s return to the writ of habeas corpus.

Section 170 requires the affidavit of bias and prejudice to set forth “the fact or facts constituting the ground of the disqualification of such [the trial] judge. ’ ’ Respondent contends that the affidavit of bias and prejudice filed on behalf of petitioner is based on “frivolous” grounds and that it contains no facts but only conclusions, hence the judge was justified in disregarding it and in deciding the question of his own qualifications, citing

People

Hooper,

16 Cal.App.2d 704 [61 P.2d 370],

People

Sweet,

19 Cal.App.2d 392, 394

In Re Harrington

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WILSON, J.

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