Journey v. Superior Court

Opinion

AULT, J. Richard Arthur Journey petitions for a writ of prohibition and/or mandate to compel the Honorable Jack R. Levitt, a judge of the San Diego County Superior Court, to disqualify himself under the provisions of Code of Civil Procedure section 170.6, and for an order transferring his cause to another judge of the San Diego County Superior Court.

Journey appeared before Judge Levitt on a probation revocation hearing. He filled out and timely filed a court-provided form, “Declaration of Prejudice (17(X6 C.C.P.),” which substantially complied with the form set forth in the statute. He moved the court, under that statute, for an order reassigning the case to another judge.

Judge Levitt denied the motion, giving two reasons: “One, there are no facts stated but merely a conclusion; secondly, on the basis that it is a violation of the separation of powers, and hence that section 170.6 of the code as applied to this criminal proceeding under these circumstances is unconstitutional.”

When counsel expressed surprise that the court had provided him with a form which was unconstitutional, Judge Levitt responded, “Perhaps you’ve just been brought to that realization,...”

Before the case could be heard, Journey filed his writ in this court and, at his request, we restrained Judge Levitt from proceeding with the revocation hearing pending our consideration of the writ.

The superior court only has appeared to answer the petition.1

The respondent court’s contention the declaration should state facts is unmeritorious. Proof of facts showing actual prejudice is not [411]required. “It is well recognized that in enacting Code of Civil Procedure section 170.6 the Legislature guaranteed to litigants an extraordinary right to disqualify a judge. The right is ‘automatic’ in the sense that a good faith belief in prejudice is alone sufficient, proof of facts showing actual prejudice not being required. [Citations.]. . . When the affidavit is timely and properly made, immediate disqualification is mandatory. (Jacobs v. Superior Court, ... 53 Cal.2d 187, 190. . . .) Hence, [the court] was bound to accept proper affidavits without further inquiry. . . .” (McCartney v. Commission on Judicial Qualifications, 12 Cal.3d 512, 531-532 [116 Cal.Rptr. 260, 526 P.2d 268].) (See also Johnson v. Superior Court, 50 Cal.2d 693, 698 [329 P.2d 5], and Pappa v. Superior Court, 54 Cal.2d 350, 354 [5 Cal.Rptr. 703, 353 P.2d 311].)