Court Challenge 

In November, the Humboldt County District Attorney's Office began employing what's known as a "blanket disqualification" in all felony cases slated to be heard by Judge Kelly Neel, meaning the proceedings have to be reassigned to another courtroom.

What prompted the legal maneuver nearly six years after Neel was appointed to the Superior Court bench by then Gov. Jerry Brown is unclear. In an email to the Journal, District Attorney Stacey Eads states only that the decision was made "because we believe we cannot have a fair and impartial trial or hearing in felony matters" in her courtroom.

click to enlarge

• File
• Kelly Neel

Prior to November, Eads says her office "filed case-specific disqualifications."

While Neel represented criminal defendants as a deputy public defender for two years before her ascension to judge, she also served as the assistant district attorney in the Humboldt County District Attorney's Office from 2011 to 2015, and was a deputy district attorney before that from 2009 to 2011 and from 2007 to 2008. She ran unopposed and was elected to a six-year term in 2020.

Under state law, each side of a case — criminal or civil — has one chance to challenge an assigned judge for perceived prejudice. Known as a peremptory challenge, Civil Code Procedure section 170.6 does not require the challenging party to give a specific reason for that belief or offer proof of prejudice, and the judge is required to recuse themself.

A so-called "blanket disqualification" or "papering of a judge" goes a step further, with generally a district attorney's office, but in some instances a public defender's office, using that challenge for a particular judge in all instances or for certain types of matters — in this instance, felony cases.

"The district attorney's office strives to work with all of our justice partners in a professional manner that achieves justice efficiently and effectively," Eads says in her email. "The district attorney, like the defendant, has the right to exercise a CCP 170.6 disqualification.

"In deciding it is necessary to exercise our right to seek disqualification of a judge, our concern is achieving a fair and impartial court process. That is what justice requires," she continues. "Failing to exercise our rights under CCP 170.6 would be a true disruption to prosecution of criminal cases, as zealous prosecution of criminal cases requires seeking a fair and impartial judge."

Nearly 50 years have passed since the California Supreme Court reaffirmed section 170.6 is constitutional, while also noting its "disapproval" of blanket disqualifications, in a decision that remains controversial.

In the 1977 Solberg v. Superior Court ruling, the concurring justices acknowledged section 170.6 could be used for "removing the assigned judge from the case on grounds other than a belief that he is personally prejudiced within the meaning of the statute."

"Among the unauthorized grounds most commonly invoked, it is charged, is the disqualification of a judge because of his views on the law or on the exercise of judicial discretion," the ruling states. "Such a disqualification assertedly has the chilling effect of discouraging judicial creativity in fashioning new rules of law, and violates the spirit of the settled principle that prior legal rulings do not constitute actual bias warranting removal of a judge for cause."

The judges also noted there are "strict limits on the timing and number of such motions," but the court majority concluded that if abuses do occur, they would not "'substantially impair' or 'practically defeat' the exercise of the constitutional jurisdiction of the trial courts."

"Rather, it may be helpful to view them as a relatively inconsequential price to be paid for the efficient and discreet procedure provided in section 170.6," the ruling continues. "The statute thus remains a reasonable — and hence valid — accommodation of the competing interests of bench, bar and public on the subject of judicial disqualification. We do not doubt that should future adjustments to this sensitive balance become necessary or desirable, the Legislature will act with due regard for the rights of all concerned."

In the ensuing decades, questions have continued about the use of blanket disqualifications amid repeated calls for the state's highest court to revisit the issue.

Those include a 2016 opinion by the Fourth District Court of Appeal in a case involving the Orange County Superior Court's refusal to grant a 170.6 motion by the district attorney that, according to the opinion, was "an improper blanket challenge to a particular judge that substantially disrupted" court operations in retaliation for the judge's rulings in previous cases.

In that opinion, the judges questioned the "wisdom" of the Supreme Court's ruling "in light of the complexities of modern court administration" but said they were bound to follow the higher court's authority and rule in favor of the DA's Office.

The appellate judges urged the Supreme Court to revisit the issue.

While no other instance of a blanket disqualification appears to have taken place in recent memory locally before Eads issued her directive regarding Neel, district attorneys in Sacramento, Alameda and San Francisco have also used blanket challenges against specific judges in recent years.

In an April 2023 San Francisco Chronicle opinion piece, retired Santa Clara County Superior Court Judge LaDoris Cordell cited the two latter instances and the blanket disqualification in the 2016 appellate opinion, among others, in calling for the Legislature to amend 170.6 to prohibit "blanket disqualifications of judges in response to their lawful decisions."

"District attorneys in California wield immense power," Cordell wrote. "They decide who should face criminal charges and they decide what those charges should be. What they must not do is force judges to do their bidding. When prosecutors control judges' decision-making authority, judicial independence is no more. "

While other instances of blanket disqualifications in the state have been tied to a district attorney being upset about a particular judge's past rulings, it's unclear whether a specific case or pattern of decisions from Neel may have prompted Eads' decision.

Eads did not respond to a follow-up question asking specifically why her office believes it is unable to "have a fair and impartial trial or hearing in felony matters" before Neel.

Shortly after the DA's Office made its intentions known, Neel was reassigned to family law cases and Judge Lawrence Killoran took over the criminal calendar in Courtroom 1.

In an email to the Journal, Presiding Judge Gregory Kreis says that decision was made "after discussions with Judge Neel and Judge Killoran," and that, in his position, he evaluates "with the assistance of staff, the most efficient placement of judges in the courts."

"I take into consideration many things, such as training, how much time a judge has been in a department, the judges' interests and the best placement of a judge for court efficiency," Kreis writes. "Judge Neel was not reassigned solely on the fact that certain DAs were disqualifying her."

Asked to comment on the District Attorney Office's decision in regard to Neel, Kreis said, "Disqualifying a judge is a right that all counsel has when they feel that a judge should not hear a case. I do not have an opinion on the separate branch of government exercising a right that they have."

He also says he does not have a "specific memory" of a previous blanket disqualification of a judge in the Humboldt courts.

Overall, Kreis says, the disqualification of a judge has "a small impact" on court operations and that once court staff "becomes aware of the disqualification, they simply reassign the case to another judge."

Court Executive Officer Meara Hattan says her office learned about the blanket disqualification after a prosecutor "indicated in a court hearing that the DA's Office intends to file such disqualification challenges with regard to Judge Neel."

There were, Hattan says, "some delays due to other courtrooms having to accommodate the cases" before Neel was moved over to family law in a courthouse that sees around 1,000 to 1,500 felony filings a year.

"The disqualification of a judicial officer in multiple cases requires that another judicial officer must be assigned to hear each of the cases, and such reassignments impact the calendars in multiple courtrooms," Hattan says.

Attorney Paul Gallegos, who served as DA for three terms, says he has no knowledge of what precipitated Eads' application of a blanket disqualification for Neel and declined to comment on the decision, adding he appreciates them both on a "professional and personal level."

Making clear he is speaking generally about blanket disqualifications, Gallegos says he never used one during his tenure as district attorney but can "imagine circumstances that it might make sense to do so," while also noting he saw contemporaries in other jurisdictions who "abused that power," in his view.

"That's the problem," he says. "It just depends on how it's used."

For his part, Public Defender Luke Brownfield says his office has not used a blanket disqualification against a judge, as far as he can recall, though it does disqualify judges on a case-by-case basis after consultation with its clients.

"The DA's blanket disqualification of Judge Neel deprives the people of Humboldt County from getting the benefits of a judge that is intelligent, honest, compassionate and fair," he says in an email to the Journal. "Those traits, along with her many other positive qualities, are why we as a county elected her to be in the position that she is in. She exemplifies what a judicial officer should be."

Regardless of Neel's disqualification, Gallegos notes the Supreme Court case dealt with the question of whether the Legislature violated the separation of powers doctrine when it enacted 170.6." But Gallegos says he feels the dissenting judge "addressed a bigger concern" — whether district attorneys exercising the authority violates those same separation of powers provisions of the state Constitution.

"It remains an issue," he says, adding the state Supreme Court "probably should revisit it" because more specific parameters for the section's use would "probably be helpful for everyone."

Kimberly Wear (she/her) is the Journal's digital editor. Reach her at (707) 442-1400, extension 323, or [email protected].