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Following a peremptory challenge Monday of Judge James Warren, the legal battle over same-sex marriage licenses in San Francisco will likely land in Judge Ronald Quidachay’s courtroom — though not necessarily for good. Which judge will hear the newly consolidated cases is one of the latest skirmishes in the legal battle over whether San Francisco can issue marriage licenses to gay and lesbian couples. The city has issued the licenses to thousands of gays and lesbians since Mayor Gavin Newsom authorized them Feb. 12, thrusting San Francisco into the national debate on the issue. Two groups of opponents have challenged the policy in San Francisco Superior Court, with one case going to Warren and one to Quidachay, the court’s two law and motion judges. On Friday, Quidachay consolidated the two cases, but didn’t say which judge would hear the combined case. If they’re timely and in order under California Code of Civil Procedure �170.6, peremptory challenges are automatically granted, lawyers and judges said Monday. “A 170.6 is not discretionary if it is filed under the appropriate timeline set forth in the statute,” said Presiding Judge Donna Hitchens. If a peremptory challenge against one of the court’s two law and motion judges is granted, the case goes to the other law and motion judge, Hitchens said. But there are at least two scenarios under which the consolidated case could be passed to a judge outside the law and motion department. If both law and motion judges are disqualified from a case, the presiding judge would reassign it, Hitchens said. Though each side only gets one peremptory challenge against a judge in a case at the trial level, another party may still use their challenge. Also, cases that start in law and motion may stay there if they don’t require an extensive trial, Hitchens said. But if they do — and that determination would be made by the law and motion judge — the case would return to the presiding judge for reassignment, Hitchens said. In general, Hitchens said, “My decisions about where a case goes for trial primarily has to do with who’s open for the necessary amount of time.” Lawyers for the plaintiffs in the case originally before Quidachay, Thomasson v. Newsom, 428794, filed the challenge against Warren. But the lawyers declined to explain the reason for their challenge. “There’s not any one particular thing,” said Mathew Staver, adding “we have reason to believe” that the judge would be prejudiced against his client. Last week, the plaintiffs’ attorneys before Warren said they were pushing for Quidachay to hear the cases because, with Warren on vacation for a few weeks in March, they thought the cases would move more quickly under Quidachay. One of the plaintiffs’ lawyers in the Thomasson case said Monday that the challenge was not based on reports in some newspapers, including the San Francisco Examiner, that describe Warren as gay. “Our peremptory challenge doesn’t have anything to do with that, or [Warren's] personal proclivities,” said Richard Ackerman, one of the lawyers for the plaintiffs in Thomasson. “Although I must say if that’s true, that certainly doesn’t bode well for the appearance of impartiality.” Though the Thomasson plaintiffs have so far appeared before Quidachay, they’re challenging Warren in Proposition 22 Legal Defense and Education Fund v. San Francisco, 503943, where they were named Thursday by the city as cross-defendants. “They [dragged] us into the Warren cases,” Ackerman said. Though City Attorney Dennis Herrera’s office pushed to get the cases consolidated before Warren on Friday, Herrera’s office is going out of its way to say it doesn’t care which of the law and motion judges presides over the challenges. The push for Warren “solely reflected an effort to better expedite cases whose issues had theretofore already been briefed for Judge Warren,” said a Monday statement from Herrera’s office. “Clearly, both judges are now fully up to speed on the cases, and the city has no preference.”

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