§ 170.6 Applies to Pre-OSC Habeas

Maas v. Superior Court, No. S225109 (Cal. Nov. 7, 2016)

Habeas corpus in California state court is procedurally complicated. But generally speaking, when a writ is first petitioned for in a superior court, the court decides whether the petition states a prima face case for relief or if it is barred by some procedural issue. Sometimes this decision is assisted by informal briefing from the government. If the petition is not summarily dismissed, the court issues an order to show cause, which then requires the government to make a formalized response called a “return.” 

The issue here is whether a habeas petitioner can use Code of Civil Procedure § 170.6 to make a peremptory strike against the judge assigned to make the prima facie, pre-OSC determination, assuming that’s a different judge than the judge who presided over the petitioner’s trial.* And if he can, does the petitioner also have a corollary right to be informed of the identity of the assigned judge so that he can make an informed decision on whether to make a peremptory challenge. The Supreme Court, in an opinion authored by the Chief Justice, unanimously answers both in the affirmative.

The first issue is controlled by the text of § 170.6, which applies to, among other things, a “special proceeding” that “involves a contested issue of law or fact.” Although it’s not entirely unanimous, the weight of the prior Supreme Court precedent holds that habeas proceedings are “special proceedings” even before the court issues an OSC. And the decision whether to summarily dismiss does entail a contested issue of law.

And the second follows if the first is to be meaningful. As the Court explains, “consistently with the objectives of section 170.6, we conclude that a petitioner who asks to be informed of the identity of the judge assigned to examine his or her habeas corpus petition prior to the judge’s ruling on the petition is entitled to notice of that assignment.”

Affirmed.

*As the court explains, if the trial judge from the conviction is reassigned, the habeas case is treated like an extension of the underlying criminal case. That makes a § 170.6 strike is untimely, since by its nature a habeas petition is filed after the commencement, and indeed the completion, of trail.