California Attorney General Opinion No. 79-416

1 79-416 TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General _________________________ OPINION of GEORGE DEUKMEJIAN Attorney General Clayton P. Roche Deputy Attorney General : : : : : : : : : : : No. 79–416 June 8, 1979 SUBJECT: DISQUALIFICATION OF JUDGES—In discussing disqualification of judges, this opinion examines who determines disqualification and who can take the place of a disqualified judge. The Honorable Ralph J. Gampell, Administrative Director of the Courts, has requested an opinion on the following questions: 1. Under the provisions of section 170, subdivision 5, of the Code of Civil Procedure, which provides that the question of a judge’s disqualification shall be heard and determined by another judge agreed upon by the parties, or upon their failure to agree, by a judge assigned by the Chairperson of the Judicial Council: (a) Must the “other judge” agreed upon be of the same court where the action or proceeding is pending? (b) May the “other judge” agreed upon be any active or retired judge or justice of an appellate, superior, municipal or justice court? 2. May the “other judge” agreed upon by the parties refuse to serve? 2 79-416 3. Is the judge against whom the disqualification objection is filed a “party” who must also agree upon the selection of the “other judge”? 4. If the parties may agree upon a judge from another court, must that judge be assigned by the Chairperson of the Judicial Council to sir as a judge where the matter is pending? If no assignment is required, who pays the judge’s salary, travel and other expenses? CONCLUSIONS 1. (a) Under the provisions of section 170, subdivision 5, of the Code of Civil Procedure, the “other judge” agreed upon by the parties to hear and determine the matter of a judge’s disqualification need not be a judge of the same court; provided, however, that the presiding judge of the court where the matter is pending may, at his or her sole discretion summarily, transfer the underlying action to another judge of that court. (b) The “other judge” agreed upon by the parties may be any active judge or justice of an appellate, superior, municipal or justice court; provided that a justice court judge, in order to serve in a higher court, must possess the eligibility requirements for municipal court service. The parties may not agree upon a retired judge or justice. 2. The “other judge” agreed upon by the parties may refuse to serve unless assigned by the Chief Justice. 3. The judge against whom the disqualification objection is filed is not a “party” who must also agree upon the selection of the “other judge.” 4. If the “other judge” agreed upon by the parties to hear and determine the matter of the judge’s disqualification is from another court, that judge may act in such matter only if also agreed upon and assigned by the Chief Justice pursuant to Article 6, section 6 of the California Constitution. ANALYSIS Section 170 of the Code of Civil Procedure1 provides the grounds for disqualification of judges, and states that “[n]o justice or judge shall sit or act as such in any action or proceeding” where any of the stated grounds for disqualification exist. Subdivision 5 thereof provides that a judge should disqualify himself if any of the stated grounds exist. It also provides that “[w]henever a judge who shall be disqualified under the 1 All section references are to the Code of Civil Procedure unless otherwise indicated. 3 79-416 provisions of this section . . . neglects or fails to declare his disqualification,” then any party who has appeared in the action may initiate a procedure objecting to the judge sitting or acting. The procedure commences with the party filing a formal objection with the clerk, which also “shall forthwith be served by the presenting party on each party, or his attorney, who has appeared in the action and on the judge alleged in such statement to be disqualified.” Within 10 days the judge may either consent to having the action or proceeding tried by another judge, “or may file with the clerk his written answer admitting or denying any or all of the allegations contained in . . . [the party’s] statement and setting forth any additional fact or facts material or relevant to the question of his disqualification.” If a judge files such an answer, section 170, subdivision 5 then sets forth procedures for (1) determining whether or not the judge is in fact disqualified, and, if so, for (2) providing another judge to hear the action or proceeding. Thus, the final paragraphs of subdivision 5 provide: “No judge who shall deny his disqualification, shall hear or pass upon the question of his own disqualification; but in every such case, the question of the judge’s disqualification shall be heard and determined by some other judge agreed upon by the parties who shall have appeared in the action or proceeding, or, in the event of their failing to agree, by a judge assigned to act by the Chairman of the Judicial Council, and, if the parties fail to agree upon a judge to determine the question of the disqualification, within five days after the expiration of the time allowed herein for the judge to answer it shall be the duty of the clerk then to notify the Chairman of the Judicial Council of that fact; and it shall be the duty of the Chairman of the Judicial Council forthwith, upon receipt of notice from the clerk, to assign some other judge, not disqualified, to hear and determine the question. “If such judge admits his disqualification, or files his written consent that the action or proceeding be tried before another judge, or fails to file his answer within the 10 days herein allowed, or if it shall be determined after hearing that he is disqualified, the action or proceeding shall be heard and determined by another judge or justice not disqualified, who shall be agreed upon by the parties, or, in the event of their failing to agree, assigned by the Chairman of the Judicial Council; provided, however, that when there are two or more judges of the same court, one of whom is disqualified, the action or proceeding may be transferred to a judge who is not disqualified. “A judge who is disqualified may, notwithstanding his disqualification, request another judge, who has been agreed upon by the parties, to sit and act in his place.” (Emphasis added.) 4 79-416 The request for our opinion herein sets forth a number of questions with respect to the “other judge” who may be agreed upon to hear and determine the question of the first judge’s disqualification. We have, however, set forth in full the provisions relating to obtaining another judge to hear the action or proceeding itself if the first judge is found to be disqualified. We have done so because of the similarity of the language found in both sections; because both are required for an understanding of the scope of the 1927 amendments to section 170, which were an outgrowth of the Judicial Council Amendment; and because the case law and opinions of this office which we deem to be most relevant relate to or are material to both provisions. We will begin with a discussion of pre-1926 procedures and the “Judicial Council Amendment” to the Constitution in 1926. 1. The Judicial Council Amendment And Other Background Matters. At the November 2, 1926 General Election, the voters approved what may be denominated the Judicial Council Amendment to the California Constitution by adding section la to, and amending sections 6, 7 and 8, of Article VI. Section la specifically provided for the establishment of the Judicial Council, and its powers and duties, including the designation of the Chief Justice of the California Supreme Court as its Chairperson.2 It provided in part that: “The chairman shall seek to expedite judicial business and to equalize the work of judges, and shall provide for the assignment of any judge to another court of a like or higher jurisdiction to assist a court or judge whose calendar is congested, to act for a judge who is disqualified or unable to act, or to sit and hold court where a vacancy in the office of judge has occurred.” (Emphasis added.) Prior to the adoption of this amendment, an era of informality existed with respect to judges hearing cases in courts other than their own, or in counties other than where they sat. This was sanctioned both by constitutional and statutory provisions. Thus Article VI, section 8 of the California Constitution provided that “[a] judge of any superior court may hold a superior court in any county, at the request of a judge of the superior court thereof, and upon the request of the Governor it shall be his duty to do so.” It also provided, inter alia, that “[t]here may be as many sessions of a superior court at the same time as there are judges thereof, including any judge or judges acting upon request, or any judge or judges pro tempore. (Emphasis added.) Section 67b specifically provided for “extra sessions” of a superior court, and for “invit[ing]” a superior court judge of another county to hold such sessions.3 Similar provisions were found in the codes with respect to justice courts and their 2 See now Cal. Const., art. VI, § 6. 3 These provisions were amended in 1933 to provide for assignment by the Judicial Council in 5 79-416 judges in former section 105, later sections 71606 and 71607 of the Government Code (repealed Stats. 1959, ch. 649, § 1, p. 2627). With respect to disqualification of judges, section 170 has existed in one form or another since 1872. The version of present subdivision 5 (then subdivision 4) found in the Codes at the time of the Judicial Council amendment did not provide how the question of disqualification was to be tried, but merely provided that the “judge shall forthwith secure the services of some other judge, of the same or another county, to preside at the trial of said action or proceeding; provided, that in the superior court of a county, or of a city and county, having more than one department, said action shall be transferred to another department thereof.” (Stats. 1925, ch. 15, § 1, p. 15.) The question of the judge’s disqualification was determined by the judge himself, without referring the matter to another judge. (See discussion in Briggs v. Superior Court (1931) 211 Cal. 619, 629–630.) Thus, just prior to the Judicial Council Amendment, a judge of any court could rule upon his own disqualification (subject to an appeal in the underlying action). If the judge determined he was disqualified, he could then informally request a judge of another court to sit for him, and such judge could do so; provided, however, that in a multi-judge superior court, the action was to be transferred to another judge of the same court. The purpose of the Judicial Council Amendment in 1926 was essentially to designate a central authority for marshalling the judicial forces of the state and to put an end to the informality which existed with respect to one judge of a particular court inviting a judge of another court to hear matters in the former’s court. These purposes are well set forth in the decision of our Supreme Court in Martello v. Superior Court (1927) 202 Cal. 400, which held that the former procedure for selecting judges pro tempore by stipulation of the parties had been superseded by the Judicial Council Amendment.4 The Court in Martello stated in part: “The adoption of the judicial council plan introduced into our judicial system a new method of disposing of the judicial business of the state, which, in the language of the act creating it, was adopted ‘in the interest of uniformity and expedition of business.’ (Italics ours.) One of its main purposes was to create an administrative judicial council or committee, of which the chief justice of the state supreme court is at the bead, vested with authority to marshal the judicial forces of the state into a unified form in the interest of ‘improving the administration of justice.’ The old practice of a lieu of invitation, or assignment by the Governor. (Stats. 1933, ch. 743, § 9a, p. 1808.) 4 This procedure for the use of members of the State Bar as judges pro tempore was subsequently returned to the Constitution as part of former Article VI section 5, and is now found in Article VI, section 21 using the updated nomenclature of “temporary judges.” 6 79-416 judge of the superior court of one county holding court for a judge of the superior court of another county at the request of the latter was in practice a matter largely resting in judicial comity, and, therefore, was lacking in administrative cohesiveness which is essential for the accomplishment of a higher degree of efficiency. As a second and third part of the former plan, section 8, article VI, before the amendments of 1926, provided that upon the request of the governor of the state it became the duty of a judge of the superior court of any county to hold a superior court session for and in place of the duly elected judge in and for any other county of the state, and, finally, it was made permissible for parties litigant or their attorneys to stipulate that a cause in the superior court be tried by a judge pro tern pore, who must be a member of the bar, approved by the court. It is very clear that the former plan of judicial assignments, if it can be thus characterized, has been superseded by the judicial council plan. . . .” (Id. at pp. 403–404, emphasis added.) It is thus seen that one of the purposes of the Judicial Council Amendment was to do away with the pre-existing informality by which judges, as a matter of comity, traveled from one court to another. It is also apparent that an agreement by the parties themselves that a judge should sit (whether “pro tem” or otherwise) is a matter of constitutional proportions. With this background, we proceed to the specific questions presented for resolution. II. Must The “Other Judge” Agreed Upon Pursuant To Section 170, Subdivision 5, To Hear The Question Of Disqualification Be From The Same Court Where The Action Or Proceeding Is Pending? This first portion of the first question presented is whether the “other judge” agreed upon to hear the matter of a judge’s disqualification must be from the same court where the action or proceeding is pending. It is the conclusion of this office that the judge who hears and determines such matter need not be from the same court. However, the presiding judge where the action or proceeding is pending may summarily transfer the underlying action or proceeding to be heard by another judge of that court. Initially, we note that if the judge allegedly disqualified is in a single-judge court, the “other judge” agreed upon by the parties necessarily must be from another court. Therefore, the question as presented would be applicable to a multi-judge court. Such a court might have only two or three judges, or it might have many judges such as is found in the Los Angeles Superior Court. Additionally, as will be explained in greater detail under the appropriate heading, infra, it is our conclusion that even if a judge from another court is agreed upon by the 7 79-416 parties, and that judge also agrees to hear and determine the disqualification question, that judge must be assigned by the Chairperson of the Judicial Council.”5 With these two matters in mind, we conclude that it follows for several reasons that the “other judge” agreed upon need not be from the same court where the action or proceeding is pending. First of all, there is nothing in the language of subdivision 5 of section 170 which limits the selection of the judge agreed upon to a judge of the same court. This is particularly significant when section 170 as cast prior to its amendment in 1927 is considered. As pointed out above, where an action was to be transferred because the judge was found to be disqualified, section 170 specifically stated that in counties “having more than one department [of the superior court], said action shall be transferred to another department thereof.” (Emphasis added.) Thus, if the Legislature desired to require that a matter remain in the same court, it was well aware of how to express itself in this regard. (Cf. Safer v. Superior Court (1975) 15 Cal. 3d 230, 237–238: “. . . the district attorney’s authority does not embrace the circumstances of this case in the Legislature’s clear demonstration that it knows how to grant him such power when it wishes to do so.”) Secondly, in a court where there are only a small number of judges, the state of judicial business therein may make it impractical to refer the matter to another judge of that court for an expeditious determination. An “outside judge” may be needed just as in the case of a single-judge court. This conclusion is even more compelling when it is recalled that the same language as to the parties agreeing upon another judge is found in section 170, subdivision 5 as to agreeing upon a judge to actually hear the underlying action or proceeding. The underlying action could be of such magnitude as to make it impossible for a judge of the same court to preside at the action in a court which has only a few busy judges. In short, an “outside judge” could be an absolute necessity. Presumptively, the same language found in both paragraphs of section 170, subdivision 5 should receive the same construction. (Pitte v. Shipley (1873) 46 Cal. 154, 160; Coleman v. Oakland (1930) 110 Cal. App. 698, 719.) 5 Article VI, section 6, relating to the Judicial Council, presently provides in part: “The Chief Justice shall seek to expedite judicial business and to equalize the work of judges. The Chief Justice may provide for the assignment of any judge to another court but only with the judge’s consent if the court is of lower jurisdiction. A retired judge who consents may be assigned to any court. “Judges shall report to the Judicial Council as the Chief Justice directs concerning the condition of judicial business in their courts. They shall cooperate with the council and hold court as assigned.” 8 79-416 In concluding that the “other judge” agreed upon by the parties to hear the question of disqualification need not be from the same court as the allegedly disqualified judge, we however in no way intend to suggest that the parties may themselves bind the Chairperson of the Judicial Council. Such would infringe upon that officer’s discretion under Article VI, section 6 of the California Constitution. In short, if the parties agree upon a judge, the Chairperson of the Judicial Council still has veto power over such selection, as will be discussed at length infra. Despite our conclusion that the “other judge” need not be from the same court as the allegedly disqualified judge, we note the case law indicates that the usual situation contemplated in a multi-member court is that the “other judge” should come from that court if possible. Thus, in Briggs v. Superior Court, supra, 211 Cal. 619, decided just after section 170 was amended to read as it does today on this point, the Court granted a writ of prohibition to restrain a disqualified judge from hearing a constructive contempt matter. The Court stated in remanding the matter: “In directing the issuance of the writ herein it is obvious that it should be confined in its application to the particular judge who is made a respondent herein, and only to the extent of prohibiting him from passing upon the question of his own disqualification, and should not be extended to the superior court which not only has jurisdiction over the original action, but which has also numerous other judges, some of whom at least are probably not subject to the disqualifications urged against the particular respondent herein.” (Id. at p. 631.) This conclusion is also consonant with the principle found in our statutory law, and the rules of the Judicial Council, that the presiding judge of a court shall apportion the business of the court among the several judges.6 Additionally, the power which reposes in the presiding judge is graphically exemplified in Donovan v. Superior Court (1952) 39 Cal. 2d 848 where the presiding judge summarily reassigned the underlying action to another judge without even offering the parties the opportunity to agree upon “another judge” to hear the question of the disqualification, or without even invoking the procedure found in section 170. With respect 6 See Government Code, sections 69508 and 69509.5 (superior courts) and sections 72271– 72274 (municipal courts) and California Rules of Court, rules 244.5–248 (superior courts) and rules 532.5–533 (municipal Courts). For example, section 69508 of the Government Code provides that “[s]ubject to the rules of the Judicial Council, he [the presiding judge] shall distribute the business of the court among the judges, and prescribe the order of business.” 9 79-416 to the contention that the assigned judge was without jurisdiction to hear the case, the Court stated, inter alia: “Subdivision 5 of section 170 of the Code of Civil Procedure contains the following proviso: ‘. . . provided, however, that when there are two or more judges of the same court, one of whom is disqualified, the action or proceeding may be transferred to a judge who is not disqualified.’ This proviso was no doubt intended to provide a simple and expeditious method for the disposition by admittedly qualified judges of cases in which claims of disqualification might be made in courts having two or more judges. We are of the opinion that this proviso should he construed to permit the transfer of a cause to a qualified judge of the same court in any case in which a claim of disqualification may he made against one of the other judges, and that its operation should not he confined to cases where actual disqualification has been either admitted or determined after a hearing. (See Stern v. Stern, 83 Cal. App. 2d 608 [189 P.2d 536].) We are further of the opinion that where another judge, who is not disqualified, is assigned to hear the cause in the same department in which it is pending, such assignment comes within the meaning of the phrase ‘transferred to a judge who is not disqualified,’ and that no actual transfer to another department is required.” (Id. at p. 854, emphasis added.) Accordingly, it is concluded that the “other judge” agreed upon to hear and determine the question of disqualification need not be from the same court as the judge allegedly disqualified. This conclusion, however, is subject to the powers of the presiding judge and the authority of the Chairperson of the Judicial Council, as above noted and described. III. May The “Other Judge” Be Any Active Or Retired Judge Or Justice Of An Appellate Or Trial Court? The second part of question one is whether the “other judge” agreed upon by the parties to hear and determine a disqualification question pursuant to section 170 may be any active or retired justice or judge of an appellate court, or a superior, municipal or justice court. Section 170 merely specifies that the judge be “some other judge agreed upon by the parties.” The issue would arise in (1) a single-judge court where the question of disqualification has arisen, or (2) in a multi-judge court where the presiding judge has not exercised his discretion so as to preclude the use of an “outside” judge. The wording of section 170 then merely provides that the parties agree upon a “judge.” Any active appellate 10 79-416 court justice, or active superior, municipal or justice court judge would meet such specification; provided, however, that a justice court judge, in order to serve in a higher court, must possess the eligibility requirements for municipal court service. (See Cal. Const., art. VI, § 15.) The issue, then, is whether a retired justice or judge would meet that specification. Although “[a] retired judge who consents may be assigned to any court (Cal. Const., art. VI, § 6; see also Gov. Code § 68543.5) in reality, the term “judge’ as used in the statutes usually does not include retired judges. As explained in Pickens v. Johnson (1954) 42 Cal. 2d 399: While in retirement he has the privilege of maintaining his membership in the State Bar of California. As such he is entitled to all of the privileges and immunities and is subject to the duties and obligations of an attorney at law so long as he maintains his membership in the State Bar organization. His term of office as a judge has expired, or been terminated prior thereto by his voluntary act, and the office is vacant. He may go and come in all respects as any attorney and counselor at law but he has no power as a judicial officer until the happening of a contingency, namely, his assignment and voluntary acceptance thereof as a judge of the superior court in and for a designated county by the chairman of the Judicial Council. That assignment does not prolong his term of office. It merely has the effect of vesting in him the powers of a judge of the superior court during the period specified in the assignment, as is ordinarily done in the case of an assignment by the chairman of the Judicial Council of an incumbent superior court judge from one county to another under the authority of section Ia of article VI of the Constitution. It must be taken for granted that under the proper exercise of the power of assignment a retired judge will not be continued in service indefinitely. The term of assignment is necessarily within the wise discretion of the chairman of the Judicial Council. Upon the expiration of the period of his assignment the judge resumes his prior status as a retired judge. If he desires to exercise the privileges of an attorney during his retirement and while unassigned, he would, of course, be subject to the provisions of the State Bar Act, including the requirement of the payment of dues.” (Id. at p. 406, emphasis added.) And on the next succeeding page (407) the Court stated: “In no proper sense is the term of a judge extended by his retirement or by his assignment. Upon his retirement he can no longer of his own volition assume to act as a judge whether he retires at the end of his term, as 11 79-416 in this case, or in his midterm. It is only upon his assignment in accordance with a statute as authorized by the Constitution that he has any judicial power whatsoever, and since it is correct to say that the assignment has a reasonable relationship to the system of retirement with no rights in the retired judge to act except under the assignment, there has been no unlawful extension of his term of office. “The fact that under section 6 of the act the retired judge while receiving retirement allowance is declared to be a judicial officer of the state (but without any power as such except while under assignment) should be considered as nothing more than making him eligible for assignment. It would be unreasonable to conclude that while not under assignment he would be subject to the conditions that attach to the status and activities of an incumbent judge. When assigned he voluntarily assumes the status of a regular judge and would necessarily be governed by those conditions. For example, when under assignment he could not practice law (Const., art. VI, § 18), and could not be absent from the state longer than 60 days (Const., art. VI, § 9). Others could be noted. While not under assignment there is no good reason to say that he would be subject to the provisions of the Constitution and law of the state made specially applicable to regular incumbent judges. (Emphasis added.) In short, it would appear that section 170 presupposes that the parties agree upon a “judge,” that is, one who has such status at that time. In our opinion, a retired judge would not meet that specification unless actually functioning under an assignment by the Chairperson of the Judicial Council at the time he or she is agreed upon by the parties. IV. May The “Other Judge” Agreed Upon By The Parties Refuse To Serve? The second question presented is whether the “other judge” agreed upon by the parties to hear and determine the question of the disqualification of a judge may refuse to serve. Assuming neither an assignment by the presiding judge of the court, nor an assignment by the Chairperson of the Judicial Council, we conclude that there is no obligation on the part of the judge “agreed upon” to so serve. Initially we note that section 170 does not provide that the matter shall be heard by the judge agreed upon by the parties, but merely “some other judge” agreed upon by them. Secondly, to require that the judge agreed upon by the parties serve would lead to absurd results. For instance, this would essentially empower parties in San Francisco to require a judge in San Diego of he or she were selected) to leave the bench there and travel 12 79-416 to San Francisco at their sole instance and direction. It would also clearly encroach upon the powers of the presiding judge of a multi-judge court to control the distribution of business within his or her own court. “It is settled that a statute is to be construed in such a way as to render it ‘reasonable, fair, and harmonious with [its] manifest [legislative] purposes . . . .’ . . . and the literal meaning of its words must give way to avoid harsh results and mischievous or absurd consequences.” (County of San Diego v. Muniz (1978) 22 Cal. 3d 29, 36–37.) Furthermore, to require the “other judge” agreed upon to sit would, in situations where that judge serves on another court, permit the parties to restore the type of informality that the Judicial Council Amendment in 1926 was intended to abolish. As noted at length above in our discussion of Martello v. Superior Court, supra, 202 Cal. 400, the amendment was intended to marshal the judicial forces of the state in the Judicial Council and abolish the practice of permitting judges of one court to sit by invitation on another court. A fortiori, it would be contrary to both the letter and spirit of the Judicial Council Amendment to permit the parties to an action to agree upon moving a judge from one court to another without either his consent or the approval of the Judicial Council. Accordingly, we conclude that a judge of either the court where the action is pending or of another court need not hear and determine the question of disqualification of a judge merely because the parties have agreed upon that judge pursuant to section 170. V. Is The Allegedly Disqualified Judge A Parry Who Must Also Agree Upon The Selection Of The “Other Judge”? The third question presented is whether the allegedly disqualified judge is a “party” who must also agree upon the selection of the ‘other judge.” We conclude that he is not from the wording of section 170, subdivision 5. At the outset we summarized without quoting in full the procedure to be followed preliminarily to reaching the question of agreeing upon another judge, that is, the procedure for raising the disqualification itself. We now set it forth in full: “Whenever a judge who shall be disqualified under the provisions of this section, to sit or act as such in any action or proceeding pending before him, neglects or fails to declare his disqualification in the manner hereinbefore provided, any party to such action or proceeding who has appeared therein may present to the court and file with the clerk a written statement objecting to the hearing of such matter or the trial of any issue of fact or law in such action or proceeding before such judge, and setting forth the fact or facts constituting the ground of the disqualification of such judge. 13 79-416 Copies of such written statement shall forthwith be served by the presenting party on each party, or his attorney, who has appeared in the action or proceeding and on the judge alleged in such statement to be disqualified. “Within 10 days after the filing of any such statement, or 10 days after the service of such statement as above provided, whichever is later in time, the judge alleged therein to be disqualified may file with the clerk his consent in writing that the action or proceeding be tried before another judge, or may file with the clerk his written answer admitting or denying any or all of the allegations contained in such statement and setting forth any additional fact or facts material or relevant to the question of his disqualifications. The clerk shall forthwith transmit a copy of the judge’s consent or answer to each party or his attorney who shall have appeared in such action or proceeding. Every such statement and every such answer shall be verified by oath in the manner prescribed by Section 446 for the verification of pleadings. The statement of a party objecting to the judge on the ground of his disqualification, shall be presented at the earliest practicable opportunity, after his appearance and discovery of the facts constituting the ground of the judge’s disqualification, and in any event before the commencement of the hearing of any issue of fact in the action or proceeding before such judge.” (Emphasis added.) It is apparent from the statute, particularly the language emphasized above, that a distinction is made therein between the parties to the action and the allegedly disqualified judge. Additionally, the succeeding paragraph of section 170, subdivision 5 (set forth at the outset in full herein) also states that “[t]he question of the judge’s disqualification shall be heard and determined by some other judge agreed upon by the parties who shall have appeared in the action or proceeding.” (Emphasis added.) Again the language of section 170, subdivision 5 distinguishes the parties from the judge since a judge would not “have appeared in the action or proceeding” in the usual meaning of such words. “In engaging in statutory interpretation we are to accord words their usual, ordinary, and common sense meaning based on the language the Legislature used and the evident purpose for which the statute was adopted.” (In re Rojas (1979) 23 Cal. 3d 152, 155.) To include the allegedly disqualified judge as a “party” who must agree upon his successor would, in our view, be contrary to the usual meaning of the term “party” and be contrary to the evident purpose of the Legislature to restrict the term to the litigants, as evidenced by the manner in which the statute is drawn. 14 79-416 Accordingly, it is concluded that the allegedly disqualified judge is not a “party” who must also agree upon the “other judge” who will hear and determine the question of his or her disqualification. VI. If The “Other Judge” Is From Another Court, Must That Judge Be Assigned By The Chairperson Of The Judicial Council? The fourth and final question presented is whether the “other judge” agreed upon by the parties under section 170 to hear and determine the disqualification question must be assigned by the Chairperson of the Judicial Council. We conclude that the other judge must be so assigned. In previous sections we have alluded to this conclusion in reaching our solutions to other questions, and have demonstrated both the absurdity of permitting the parties at their sole option to agree upon moving judges about the state and from court to court. We have also pointed out the obvious infringement such procedure would have upon the constitutional powers of the Chairperson of the Judicial Council under Article VI, section 6. Although there is no case or opinion of this office directly in point, there is a prior opinion of this office which we consider controlling by analogy. In 32 Ops. Cal. Atty. Gen. 156 (1958) we were asked whether “a judge of a justice court who has been requested to sir in another justice court under section 71606 or section 71607 of the Government Code [may] lawfully do so without an assignment from the Chairman of the Judicial Council.” (Ibid.) The cited sections of the Government Code still permitted at that time such an informal “invitation” procedure despite its abolition from the Constitution in 1926 as to superior courts as part of the Judicial Council Amendment, and its excision in 1933 from the statutes as to those courts. Reasoning from the landmark case of Martello v. Superior Court, supra, 202 Cal. 400, we concluded “that the ‘request’ method provided by Government Code sections 71606 and 71607 [was] . . . inconsistent with the [then] provisions of article VI, section la, of the California Constitution, and that assignment by the Judicial Council is the only procedure by which a judge of one justice court may be made available to assist another justice court.” (Id. at p. 158.) We stated further: “The Constitution imposes upon the Judicial Council responsibility to keep informed with regard to the condition of business in the several courts of this state, to seek to achieve uniformity, to expedite judicial business, and to equalize the work of the judges. It is difficult to see how the council could adequately perform these duties if each judge were permitted to absent himself at the request of another judge, and to decide for himself whether judicial business is more pressing at home or in a distant court. In an informal 15 79-416 letter opinion of April 30, 1954, this office has already expressed its view that the Judicial Council has authority to require a qualified judge to sir in another court (303 L.B., Cal. Atty. Gen. 372). It is also our view that to achieve the purposes of the judicial council plan, the council must have the authority to require a judge to remain in his own court.” (Ibid, emphasis added.) This reasoning is equally applicable to section 170, subdivision 5, of the Code of Civil Procedure insofar as it purports to permit the parties to agree unilaterally upon a judge to hear and determine a disqualification question, or to agree upon a successor judge to the disqualified judge. Accordingly, we conclude that section 170 would be unconstitutional if it were construed to permit the parties to unilaterally agree upon an “outside” judge who was not subsequently assigned by the Chairperson of the Judicial Council. Therefore, if an outside judge is agreed upon by the parties, that judge may act in such matter only if also agreed upon and assigned by the Chairperson of the Judicial Council pursuant to Article VI, section 6 of the California Constitution. This conclusion renders the second portion of question four moot, since it presupposes that no assignment was required.7 ***** 7 The Government Code specifically provides for the manner of payment of salaries and expenses of judges assigned to other courts by the Judicial Council. (See Gov. Code, § 68540 et seq.)