Boags

In this case of first impression we are called upon to decide whether a judge may be charged with a crime for failing to disqualify himself from deciding proceedings, when such disqualification is made mandatory by section 170.1 of the Code of Civil Procedure. We have concluded such prosecution constitutes an improper invasion by the executive of the province of the judiciary, and is therefore violative of the separation of powers set forth in article III, section 3 of the California Constitution.

Petitioner Boags is a sitting judge in the Municipal Court of Beverly Hills Judicial District, County of Los Angeles. In a two-count misdemeanor complaint he is charged with conspiring to obstruct justice and the due administration of the laws (Pen. Code, § 182, subd. 5, count I), and with violating Government Code section 1222 (hereinafter Section 1222) by “willfully failing to disqualify himself from deciding proceedings” in which disqualification was required by the Code of Civil Procedure (count II). The respondent denied petitioner’s motions to dismiss count I and for an evidentiary hearing in connection with his motion to dismiss, and overruled his demurrer to both…