Under Code of Civil Procedure section 170.6, a party may challenge judge assigned to assess and rule on a petition for writ of habeas corpus at the initial stage of the habeas corpus process, before an order to show cause (OSC) has been issued. Maas filed a habeas petition in superior court. He requested the name of the judge assigned to rule on the petition but received no response. Shortly thereafter Judge Thompson summarily denied the petition. Maas filed a new petition in the Court of Appeal along with a declaration stating that he would have moved to disqualify Judge Thompson pursuant to section 170.6 if he had been informed of his assignment. The Court of Appeal issued a writ of mandate directing the superior court to vacate the denial of Maas’ petition and to reassign the petition to another judge. On its own motion, the Supreme Court granted review. Held: Affirmed. Section 170.6, subdivision (a)(1) provides that “a judge . . . shall not try a civil or criminal action or special proceeding of any kind or character nor hear any matter therein that involves a contested issue of law or fact when it is established as provided in this section that the judge . . . is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.” The court here concluded that a habeas corpus proceeding (including a ruling on a habeas petition before an OSC has issued) is a “special proceeding.” The court also determined that a judge who decides whether a habeas petition states a prima facie case for relief hears and resolves a contested issue of law within the meaning of section 170.6. As a result, “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.” The petitioner is also entitled to “challenge the assigned judge, so long as all of the procedural requirements of under section 170.6 have been satisfied, including the requirement that the assigned judge not have participated in petitioner’s underlying criminal action.” In this case, Maas met all the requirements.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/S225109.PDF