Monday Morning Thoughts: Why 170.6 Is So Dangerous

In a letter this week, attorney Christopher Dietrich writes that “the board’s action sets a dangerous precedent and represents an overreach by our county’s legislative branch of government.

“The independence of our judiciary is an integral component of our system of government. Judges must be free to interpret and apply the law in each case before them. The judiciary is not a political body, and attempts by other branches to exert political pressure upon this independent institution should be met with concern and outrage by our citizens.”

Why is this such a bad precedent?  Imagine instead of dealing with dependency court, we are dealing with criminal court.  In a high profile case, a judge makes a controversial ruling against the DA’s office.  Since pretty much every case has to go through the DA’s office for prosecution (except in rare circumstances where the Attorney General’s office may prosecute the case due to conflict), the DA’s office can pretty much use their 170.6 discretion to do what the supervisors did with Judge Basha.

Far-fetched you say?  Well, talk to old-timers and they will tell you about Judge William Lebov, a former prosecutor, who was seen to rule often with the defendants.  So the Yolo County DA’s office, under David Henderson, used the Code of Civil Procedure section 170.6 motion – or what is known as “papering” – to get cases out of his courtroom.  Eventually, he had no cases left in front of him and he was forced to retire.

In the case of Judge Basha, rather than confront the county, he requested a reassignment.

Did circumstances warrant it?  I have spoken to a lot of people on this and many believe that the county acted improperly, but that the seeming arrogance of the court led people like Supervisors Jim Provenza and Oscar Villegas to have no choice.

Mr. Dietrich, for his part, notes, “The board alleged no misconduct or unethical behavior on behalf of Judge Basha, merely a dissatisfaction upon the way the law was applied in particular instances.”

Mr. Rexroad defended his actions by arguing that they were not trying to cook the books, that the new judge would rule on the case, but I think he misses an essential point that the supervisors have now put their thumbs on the scales and have inserted their policy concerns over a potential application of the law through proper process.

We see this most seriously at play in Orange County where Judge Thomas Goethals, also ironically a former prosecutor, made unfavorable rulings in the murder trial of Scott Dekraii – that has been sidetracked by allegations of a plot by the sheriff’s office and prosecutors to conceal a long-running jailhouse snitch program that has garnered national attention.

In August 2014, the judge criticized the DA’s office for failing to turn over exculpatory evidence and then recused the entire DA’s office from the death penalty phase of the case.  This prompted an appeal by the Attorney General’s office that excoriated the DA’s office.

In March 2015, the LA Times reported that since February of 2014, the DA’s office used 170.6 in 57 cases.  The Orange County Register in January of 2016 reported, “The Orange County District Attorney Office’s practice of ‘blanket papering’ Superior Court Judge Thomas Goethals is disrupting the county’s court system and violates state and federal constitutions, a local judge has ruled.”

“The People’s actions have substantially disrupted the orderly administration of criminal justice in Orange County, the sixth-largest county in the nation,” Superior Court Judge Richard King wrote in a December 3, 2015, ruling. “It has negatively impacted not only the assignment of murder cases, but all felony cases as well.”

The DA, of course, denies an “organized effort to remove Goethals from cases and that King doesn’t have the authority to take peremptory challenges away from prosecutors.”

“Prosecutors have consistently litigated their cases in front of Judge Goethals, including a serious robbery case in his courtroom today,” his statement said.

The paper reports, “But King said prosecutors have papered Goethals in 46 of 49 murder cases assigned to his courtroom between February 2014 and September 2015, under a legal provision that allows both prosecuting and defense attorneys to remove judges as a peremptory challenge.”

However, in March, an appellate court upheld the DA’s right to a peremptory challenge to disqualify Judge Goethals.

The appellate court ordered Orange County Superior Court “to vacate its orders denying OCDA’s 170.6 motion” and also found that “there has never been ‘blanket papering’ of any judicial officer.”  The DA’s office maintains, “Any exercise of peremptory challenge made by any member of the OCDA has been the individual prosecutor’s decision to do what is in the best interest of the People, public safety, and crime victims.”

Regardless of the outcome of the Judge Goethal’s case, we can see the chilling effect of blanket 170.6 motions.  In Judge Goethal’s case they appeared to target him mainly on murder cases, rather than all cases.

The ruling by the appellate court only backs up how difficult it would be to fight a blanket 170.6 motion.

As the OCDA explains, under 170.6 every party is granted the right to exercise “a single peremptory challenge against any judge that litigant believes, in good faith, is prejudiced against him or her or his or her case.”

They continue, “The law does not require any party to explain their reasons for peremptorily challenging a judge, nor may a court inquire into those reasons.  It requires only that the party have a good faith belief that prejudice exists.”

The problems of abuse of that process are clear.  Judge Goethals had a case of overwhelming evidence of malfeasance before him – and the appellate court backed him up on the enormity of that evidence.  And yet the DA’s office has tried to punish him by removing murder cases from his courtroom – not just to impact him but to make an example of him to other judges who would issue rulings against the DA’s office.

This represents a serious and grave threat to the independence of the judiciary.

The unanswered question is now that Judge Sam McAdam has been moved to dependency court, what happens if he rules in the same manner as Judge Basha or what happens if he rules completely differently – will other parties see him as acquiescing to political pressure?

While I think Matt Rexroad and others have raised serious concerns, it seems that those concerns need to be addressed via legislation that would change the laws rather than changing the judge.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. PhilColeman

    “The judiciary is not a political body.”

    Really? Every aspect of the judiciary branch of our government is part of a political process. The very creation of the judiciary branch of our government, selection of all jurists, process of appeals, statutory and constitutional controls and audits, all originated and has been refined through a political process.

    Yes, certainly some within the legal profession would love to be fully independent, free of constraint and accountability from the electorate, and the two branches of our government but the Constitution will not permit it.

    Anybody, can publicly claim abuse of power, overreaching, self-interest, retribution, in a governmental action, and its already been exercised in this particular incident. This is a prime example of a political process. This writer properly uses the privilege to criticize a legislative action, but then condemns the same tactic when other–with equal entitlement– directs their concerns towards the judiciary. Then its seen as “interference.”

    Yolo County did nothing unprecedented. Throughout our Country’s history our three divisions of government have directed public criticism and scrutiny towards each other. And our free press further fuels this dynamic. It’s all part of our Constitution sanctioned checks and balances.

    The judiciary is a unit of government and has no immunity from public scrutiny despite claims to the contrary. If the 170.6 statute is so “dangerous,” seek relief from the appellate courts and cite those specific instances already mentioned. Or if its the statue itself that is onerous, take the argument to the Legislature. This law was originally enacted in response to prevailing public sentiment. Should the Legislature be persuaded on the danger alleged, the statute will be promptly repealed.



  2. Tia Will

    “The board alleged no misconduct or unethical behavior on behalf of Judge Basha, merely a dissatisfaction upon the way the law was applied in particular instances.”

    The statement is technically correct as written. However, it has neglected a major component of the reasoning behind the board action. The county council made it clear that the issue before the board was one of prejudice, not judicial philosophy.

    It requires only that the party have a good faith belief that prejudice exists.”

    Supervisor Rexroad believed that he had evidence of prejudice in the form of multiple statements made before varied groups on different occasions in which Judge Basha avowed that he would always return the child to the biologic parents. What he does not appear to have stated is that he would do so only if there was no significant risk to the child. This would seem to me to be a primary source admission of prejudice since he made no statement of exception.

    I personally do not like the use of a blanket 170.6, but so far, no poster who sees danger in this approach has begun to address how to keep children safe while attempting to change the laws. No poster critical of the 170.6 has addressed the very real deaths of the Talamontes and Green children despite the fact that I have asked on multiple occasions. Surely the lives of real children should take precedence over a theoretical concern over judicial independence.

    1. Eric Gelber

      … multiple statements made before varied groups on different occasions in which Judge Basha avowed that he would always return the child to the biologic parents. 

      Without having been present, I can assure you that no judge would have made such a blanket unqualified assertion–and certainly not on multiple occasions. Moreover, this allegation is easily refutable by checking the record. Are there no cases in which Judge Basha did not return a child to the biological parents? If this were the basis for seeking a blanket 170.6 disqualification, it would have almost certainly been obtained under false pretenses.

      1. Tia Will


        No. Because the comment in question was  allegedly made in public at meetings of foster parents and not on record. There are at least three occasions on which he is quoted as having made similar comments. Supervisor Rexroad and two foster parents confirmed this. Now reasonable people can disagree on what a speaker at a public event actually meant. I have had one public official indirectly accuse me of “twisting their words” when in my version of events, I was only taking that speaker “at their word”. I suspect that we will never know exactly what the judge meant by the comments, but I think it is also not reasonable to presuppose that these people were all just making it up.

        1. Eric Gelber

          That’s not the record I’m referring to. I mean the court record on the disposition of Judge Basha’s cases. Did he never deny reunification?

        2. David Greenwald

          My understanding was he did, he was just below average.  Matt Rexroad believes another judge would have denied reunification in 10 to 15 more cases.  I’m not sure that’s true.

        3. Eric Gelber

          Well, what another, unidentified, judge would do is, of course, pure speculation. By that reasoning, any judge above or below average is biased one way or the other. This was a clearcut case of overreaching by the Board.

        1. Tia Will

          I am aware. I cited those cases to address specifically what I see as a systemic issue and not specifically related to this judge about who’s actions I know nothing. I hope I made that clear in my public comment. I know that I have made it clear in multiple comments here.

      1. Claire Benoit

        A good article Eric! I think there’s a lot of ignorance out there in people’s ideas of foster homes. I have known several and while I am sure there are nice ones – Very very few that I have seen would be a place that any caring parent would even want to use as a daycare for their children…

        Even when foster homes are “excellent” – Kids love their  biological PARENTS and excepting only cases of serious drug abuse/mental illness – there is no person who is capable of loving a child more than their own naturally connected parents. It may hurt some to hear this but its just a fact. I was late in getting to know much of my own extended family through my biological father and you know what? I love my adopted fathers family dearly but my connection to my biological paternal grandparents in wholly different. It was instant and unspoken. We are connected by blood and that is really something you FEEL regardless of distance or absence. (Which is why even with my own looney case; I would never senselessly create any barriers between my children and their biological father unless I had TRUE concerns… and I did everything to manage those concerns on my own before a court overstepped it’s boundaries with my children and our family. But water under the bridge I guess.

        Anyway, I think privatized foster care puts children in very high risk situations. These people need to be screened far more closely. And NO child should be going into a foster home UNLESS there is exposure to drugs/serious abuse/violent mental instability (DANGER).

        And kids should be returned to their bio parents as quickly as possible if none of those issues are present.. .but they should have never been taken in the first place is that is the case. I too have gone at odds with the court for valuing “biological parental rights” above the welfare of children… but unfortunately I have come to know a lot of parents who have wrongfully lost their children to CPS/courts over things like vaccines, home schooling, getting 2nd medical opinions, having an untidy home, or just a crazy CPS worker (crazy people work in every field)… So my empathy goes both ways because there are horror stories on either end of the spectrum.

      2. Claire Benoit

        And here’s one small issue to consider: If a child has been appropriately removed from their biological parents – that child has already sustained SERIOUS trauma and abuse… I have seen foster homes comprised of one single elderly woman already raising her teenaged grandson who was abandoned by her drug addicted daughter…. I have known another foster home that consisted of a woman whose “sons” numbered approximately upwards of ten and ranged in age from their teens to early 20s… and were all members of a serious streetgang… What do you think happened to the young teen girls that foster mom took in? I knew one personally and her story was sad as can be. In fact shes a meth addict now (possibly recovered, idk).

        Anyway – kids that have suffered these sort of traumas would probably do better (and be safer!) in a facility staffed with professionals and monitored and regulated closely. I get that you want to replicate a family but this is fantastical thinking… These kids dont know the forest for the trees when it comes to abuse which makes them vulnerable. And if theyre being unethically removed from their parents – their exposure to kids from harsher circumstances in a household that cannot possibly devote the necessary time and attention needed by each child and making sure Child A’s mess does not creep into the bed of the lesser abused Child B – then foster homes become a cesspool for trauma transferring. The kids come out worse than they were going in. Not good.

        If this case and video does not make you leery of making it too easy to separate kids from their parents – there is something wrong with YOU:

  3. Tia Will

    “The judiciary is not a political body.”

    The fallacy of this comment should be clear to anyone aware of the national debacle over the nomination of Merrick Garland.

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