It's time to deep six the '6'

The reaction of most new judges to being peremptorily challenged under Code of Civil Procedure section 170.6 is bafflement. "I've never even heard of the lawyer or her client who challenged me; how can she declare under penalty of perjury that I am prejudiced?" Our new colleagues are quickly counseled by the more seasoned not to give it a second thought. Why? Because the purpose of the "6" (as it is often referred to in judicial circles) likely was in no way grounded in the reason the legislature intended in 1957 -- namely, a good faith belief that the judicial officer is indeed prejudiced -- but for wholly collateral reasons. The lawyer does not like the venire characteristics of a particular district to which the case was assigned. Or because the judge is new, counsel knows nothing about him (the opposite of having a good faith belief that the judge is prejudiced). Or an even more pedestrian reason ("No way do I want to drive out to Chatsworth!"). All reasons collateral to the purpose of the statute -- and all plainly improper.

Yet even if a judge suspects the party is abusing the statute, the judge is powerless to do other than to ask no questions, accept the timely challenge and to recuse. La Seigneurie U.S. Holdings, Inc. v. Superior Court, 29 Cal.App.4th 1500, 1505 (1994). See also People v. Superior Court, 1 Cal.App.5th 892, 901 (2016) (court cannot "assess [] the motivations and weigh [] the consequences" of § 170.6 disqualifications). Some 68 years after its promulgation, and despite our commitment to the integrity of the judiciary and its independence, we must countenance the widespread abuses of 170.6.

Or not. Today, I (speaking solely for myself) join with others who call for the repeal of section 170.6 -- and recognize it as a modern-day Volstead Act, a well-intended experiment that just hasn't worked out well. Lest anyone think I claim to break new ground, I plainly do not. See, e.g., [then-Fresno County Superior Court Judge Steven] Kane, "CCP 170.6 Should Be Repealed," ABTL Report, Vol. 11, No. 3, Summer 2002 (for those of you marking the passage of time, this is the year Kelly Clarkson won the first American Idol).

Some say there are some good policy reasons for the 170.6 regime. They assert that it provides a quick, final and sanitary method for counsel with a good faith belief in a jurist's prejudices to draw a different jurist. By sanitary, they mean the 170.6 process avoids the unpleasantness, if not bitterness, that specific public accusations of supposed prejudice can engender. Such accusations and subsequent public consideration of them could tarnish reputations for the judicial officer, the lawyer asserting the challenge, or both. Proponents observe that the California Supreme Court has explained the salutary purposes of the statute at least twice. The purpose of the statute, the high court explained a year after its passage, is to ensure that the "business of the courts [is] conducted in such a manner as will avoid suspicion of unfairness." (Johnson v. Superior Court, 50 Cal. 2d 693, 697 (1958). Nineteen years later, the California Supreme Court wrote, "[t]he Legislature chose to place greater weight on the avoidance of the appearance of bias than on the inconvenience that may result from reassignment." Solberg v. Superior Court (1977) 19 Cal.3d 182, 198. And proponents assert that upon an appellate reversal with a remand to the reversed judge, there is an appearance of the risk of judicial reprisal which must be avoided by permitting the successful appellant to replace the reversed judge. My responses follow.

First, no fair-minded person can gainsay some of the policy benefits of the current 170.6 process. The question is whether the benefits outweigh the detriments and on that I say they do not. If the goals are to "avoid the suspicion of unfairness" and "avoidance of the appearance of bias," I say experience has shown the statute fails the test.

Second, no one should have a problem with counsel challenging a judicial officer based on a good faith belief in the jurist's prejudices. The problem is, how can we know if counsel's assertion of prejudice is indeed based on a good faith belief when it is stated summarily, with no detail provided and no possibility of inquiry, challenge or review? The answer is, we can't. Like most things bereft of sunshine in their regulation, the opportunity for abuse and gamesmanship is manifest and widespread.

Third, the 170.6 regimen undermines respect for the law by our profession's acquiescence in accepting counsel's declaration under penalty of perjury regarding a claimed belief in the jurist's actual prejudice when we contemporaneously understand that many such declarations are simply false. Lawyers are officers of the court, and we should insist that they be honest at all times. See, Business and Professions Code section 6068(d) ("It is the duty of an attorney ... never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.") We should not accede to any dilution of the integrity of counsel declarations.

Now, may I be permitted a digression? I suggest even when counsel in fact harbor such a good faith belief, it is often in error. Counsel whose belief in a jurist's actual prejudice is based upon that jurist's prior law practice are engaging in very lazy thinking. That a judge used to be a big law employment litigation defense lawyer or plaintiff wage and hour class action lawyer says nothing about how they will handle such cases put before them. Judicial officers understand very well that they occupy a wholly different place in the justice system than they did as counsel. It is true that such jurists assigned a case arising from their former area of practice probably know the area of law and the culture in which the case arises perhaps better than some others but that ought to be a point in favor of their presiding over the case, not their disqualification.

The free recusal offered to counsel following reversal on appeal with remand sells trial judges short and, frankly, makes no sense in its application. Trial judges understand well that they are going to get reversed in their careers. No one bats 1,000. We must make dozens of decisions per day with incomplete information, crushing caseloads and calendar congestion. Even if we get it right almost always, there is room for error. It is not surprising that the Court of Appeal, with benefit of months of time to comb a record, the assistance of top-notch law clerks, and hundreds of pages of additional briefing, may find (perhaps 2-1) that error occurred. Judicial officers in the trial courts also understand that just because the Court of Appeal reverses, that does not mean that the trial judge was "wrong." It often boils down to a disagreement on a less-than-clear point of law. One of the current presiding justices of a division of the Second District explained this very point (a reversal does not mean you were wrong) to a collection of new Superior Court judges noting, "that's why they call it an opinion." 

The point is that while no one likes being reversed, it is a demeaning and erroneous assumption that a reversed trial judge is aching for personal retribution. And if such an assumption were valid, and the risk of the appearance of prejudice and suspicion of unfairness are top concerns, why does 170.6 not apply to the Court of Appeal panel which is reversed by the Supreme Court with a remand for further proceedings? The answer is because that panel has already put in so much work that it would be wasteful to reassign it to a different panel -- and, of course, it is understood that the reversed Court of Appeal justices are not aching for retribution. Why are those reasons not also true in the trial court?

Digression concluded, I now proceed. Fourth, the current 170.6 process facilitates the pernicious practices of judge shopping and strategic gaming, especially in smaller courts and districts where the challenge results in a predicable ultimate judicial assignment. For example, if a courthouse has two judicial officers presiding over unlawful detainer cases, it is clear who will end up with the case following a "6." It is a bad idea to give any litigant the chance to select their judge. We generally take comfort in the practice of random assignment of the judge "on the wheel" because implicit in such randomness is fairness. There is no rigging of the system. But non-random, party-driven judicial assignment undermines confidence in the judicial system.

Fifth, the 170.6 process is a serious affront to judicial independence in the face of institutional "blanket" challenges to a judicial officer. Current "6" processes permit institutional sides of litigation (e.g., the prosecution, the public defender, the landlord bar, the tenant bar, Lemon Law lawyers, counsel representing the automobile industry) to impose pressure on a judicial officer to hew to a certain line (e.g., on demurrer, writs of execution or discovery matters) or face the risk of suddenly having no work. This can result in a perfectly capable jurist being reassigned out of an assignment which, in turn, is a direct affront to presiding judges' authority to make judicial assignments in the best interests of the court. See, California Rule of Court, rule 10.603. This is a real issue. See, California Law Revision Commission, Committee on Revision to the Penal Code, Staff Memorandum, Automatic Disqualifications of a Judge and Related Matters (May 16, 2025), for a further chronicling of these blanket challenge abuses.

Sixth, if it is the appearance of unfairness and suspicion of prejudice that 170.6 is guarding against, what about the appearance (or worse, the reality) that 170.6 challenges are made for reasons of a jurist's personal characteristics such as race, gender, ethnicity or sexual orientation? A challenge made on such basis is intolerable yet there are no Batson/Wheeler or Racial Justice Act-like protections against such abuses. (Cf., Code of Civil Procedure section 213.7(a) ("A party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups.") (emphasis supplied).)

This, too, is a real issue. See, California Law Revision Commission, Committee on Revision of the Penal Code, Staff Memorandum, Updates on Staff Research and Preliminary Proposals: Gender Bias, Retroactivity, and 170.6 Disqualifications (July 17, 2025), which reports, "[i]n Yolo County, prosecutors blanket challenged the only Hispanic judge in the county and disqualified her from hearing felony criminal cases. Defense attorneys raised an equal protection challenge to the 170.6 disqualifications, but the Presiding Judge was forced to deny it without any record of intentional discrimination, currently the only bar to a 170.6 challenge."

Seventh, we should understand that California is in the small minority of states that permit peremptory challenges to trial court judicial assignments. The exact number is hard to come by, but a recent law review article identifies that number as a mere seven. Park, Perfecting the Judicial Peremptory Challenge: A New Approach Using Preliminary Data on California Judges in 2021, S. Cal. L. Rev. 254, text at fn.135 (2024). I suggest we approach with humility the question: if 170.6 is good policy, why is it such an outlier in, as Justice Brandeis might put it, our laboratory of democracy? It is not because it hasn't had time to catch on elsewhere; it is because it has been rejected elsewhere.

Eighth, there are adequate existing processes to protect litigants from prejudiced jurists and the risk of the appearance of prejudice and suspicion of unfairness. We start with the rules of mandatory self-recusal. These include when the judge has personal knowledge of disputed evidentiary facts, a personal bias or prejudice concerning a party or lawyer, or a financial or other personal interest that could be substantially affected by the outcome. A judge must recuse when she served as a lawyer in the matter, or was associated in law practice with someone who represented a party, or expressed an opinion on the merits while in another role (e.g., as an attorney or arbitrator). Or when the judge previously served as a government attorney, adviser or official involved in the case. Or when the judge or a close relative has a financial interest (ownership, investment, or similar) in a party or subject matter. Or when the judge or their spouse/partner is a party, attorney, or material witness, a fiduciary for a party, or has a close relationship likely to affect impartiality. And there is the much-used catch-all: a judge just recuse when "a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial." Code of Civil Procedure section 170.1(a)(6)(A).

Other existing safeguards include the regime for challenging a judge for actual bias or prejudice under Code of Civil Procedure sections 170.1 and 170.3. Next, there is the judicial complaint process under which every Superior Court investigates alleged violations of the Canons of Judicial Ethics and requires appropriate corrective action for their violation. There is, separately, the state-wide Commission of Judicial Performance which likewise investigates complaints of violations of the Canons. Last, there is the Court of Appeal.

Granted, none are as sanitary as the no-questions-asked regime of 170.6. But all are far more transparent and trustworthy. Let us end 170.6 peremptory challenges.