Let's review the California law regarding judicial disqualification, codified in California Code of Civil Procedure Section 170.6. This law says a judge can be disqualified or removed from presiding over a civil case or a criminal trial if they are prejudiced against you or your attorney. Trying to challenge or disqualify a judge based on prejudice is called a "peremptory challenge."
Notably, to exercise a peremptory challenge, you must file a motion to recuse and follow the proper procedural steps to file this motion. It should be noted that a CCP 170.6 peremptory challenge is different than a CCP 170.1 "for cause" challenge.
A judge could also be removed based on California's probate code or the state constitution. Simply put, there are instances when the disqualification of a judge can be a matter of concern.
CCP 170.6 says a judge can be disqualified from presiding over a civil lawsuit or criminal trial if the judge seems prejudiced against one of the parties or attorneys.
If someone wishes to challenge the judge, they are not required to prove the judge's bias or provide factual reasons for their claim. They simply need to express their belief that the judge is prejudiced and they do not believe they can receive a fair trial. This process, designed to ensure fairness and justice for all parties involved, provides a level playing field.
When somebody makes this challenge, the judge must stop presiding over the case and allow it to be assigned to another judge. The challenge must be submitted promptly; otherwise, it will not be accepted. Each side is entitled to one peremptory challenge regarding the judge in a case. A judge can also be challenged for cause.
To be "disqualified" means a judge is removed from a court case, and an alternate judge is assigned to the proceedings. Any party in a case seeking a peremptory challenge must file a motion to recuse and then follow the proper legal procedures.
What is the Process to Disqualify a Judge?
To disqualify a judge with a peremptory challenge, you must do the following:
- File a motion to recuse.
- Follow the correct steps.
A motion to recuse is a legal motion that requests the court to remove a judge from a case because the judge may be biased. The prosecutor, as the representative of the state, can file a motion to recuse a judge, the defense attorney can file a motion to recuse a judge, or the plaintiff or defendant in a criminal or civil case can file a motion to recuse a judge.
If you want to disqualify a judge, you must file a motion that includes specific language listed in the law at CCP 170.6.4. This motion must be filed on time, but you can try to disqualify a judge at any time before the trial starts.
Typically, people try to file this motion before the judge decides a disputed fact in the case. This usually means filing the motion within ten days after you receive notice that the judge is assigned to your case.
If the court grants the peremptory challenge, a new judge will assume responsibility for the case. This means the current judge will be removed from the case, and a new judge will be assigned. If the motion to recuse is deficient, it will be denied, and the current judge will remain on the case unless a properly filed motion is submitted.
Attempting to remove a judge requires a specific set of procedures, or you will be denied. It's important to note that a successful peremptory challenge can significantly impact the course of your case, as a new judge will bring a fresh perspective to the proceedings.
Peremptory and For-Cause Challenges
Understanding the differences between peremptory and for-cause challenges is not only crucial but also empowering. A peremptory challenge involves alleging prejudice, whereas a for-cause challenge can be made under certain circumstances, such as when a judge has a conflict of interest in the case. This knowledge empowers you in your legal proceedings, giving you the confidence to navigate the system effectively.
When seeking to recuse a judge from a case, two challenges exist: peremptory challenges and challenges for cause. When making a peremptory challenge, the party making the challenge has to allege prejudice. Your role in this process is not only crucial but also integral to its success. It ensures the integrity of the legal system.
When a perceived conflict of interest arises, a judge can be removed for cause. Consider the following:
- Under the California Code of Civil Procedure 170.1, a party can try to remove a judge from a case for cause if they believe the judge has a conflict of interest for various reasons, such as the judge having personal knowledge of disputed facts in the case or because they served as a lawyer in the proceeding or advised a party in the proceeding.
- The judge can also be removed from the case if they have a financial interest or are related to one of the parties involved.
- Further, a judge can be removed if they, or someone related to the judge, is associated in the private law practice with a lawyer on the case.
Notably, the presiding judge could also decide to remove themselves from a case for the following reasons:
- If the judge thinks that recusing themselves would further the interests of justice.
- If the judge thinks there is substantial doubt about their ability to be impartial.
- If someone who knows all the facts could doubt the judge's ability to be impartial.
The number of for-cause challenges against the presiding judge for the parties involved is unlimited.
What Other Consequences Can Judges Face?
The California Commission monitors the performance of all state judges. If a judge commits misconduct or violates an ethical rule, they can be suspended or removed from the bench entirely. For specific reasons, a probate judge may be disqualified under the California Probate Code, Section 7060 CPC. Consider the following:
- Under the Due Process Clause of the Constitution, everyone has the right to an impartial judiciary in a criminal matter. It's essential to note that a CCP 170.6 peremptory challenge differs from a CCP 170.1 'for-cause' challenge. This distinction not only empowers you but also reassures you of the fairness of your legal proceedings.
- A "for-cause" challenge means a party could try to disqualify or remove a judge under certain circumstances, such as a judge with a conflict of interest in the case.
If you require additional information or have questions about the disqualification of judges in a California criminal or civil case, please contact us to review the details. Eisner Gorin LLP is based in Los Angeles, CA.
What Does the Law Say?
The full text of California Code of Civil Procedure 170.6 (CCP) states the following.
"(a)(1) A judge, court commissioner, or referee of a superior court of the State of California 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 or court commissioner is prejudiced against a party or attorney or the interest of a party or attorney appearing in the action or proceeding.
(2) A party to, or an attorney appearing in action or proceeding may establish this prejudice by an oral or written motion without prior notice supported by affidavit or declaration under penalty of perjury, or an oral statement under oath, that the judge, court commissioner, or referee before whom the action or proceeding is pending, or to whom it is assigned, is prejudiced against a party or attorney, or the interest of the party or attorney, so that the party or attorney cannot, or believes that he or she cannot, have a fair and impartial trial or hearing before the judge, court commissioner, or referee.
If the judge, other than a judge assigned to the case for all purposes, court commissioner, or referee assigned to, or who is scheduled to try, the cause or hear the matter is known at least ten days before the date set for trial or hearing, the motion shall be made at least five days before that date.
If directed to the trial of a cause with a master calendar, the motion shall be made to the judge supervising the master calendar not later than the time the cause is assigned for trial. If directed to the trial of a criminal case that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or the presiding judge by a party within ten days after notice of the all-purpose assignment or if the party has not yet appeared in action, then within ten days after the appearance.
If directed to the trial of a civil cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or the presiding judge by a party within 15 days after notice of the all-purpose assignment or if the party has not yet appeared in action, then within 15 days after the appearance.
Suppose the court in which the action is pending is authorized to have no more than one judge. The motion claims that the duly elected or appointed judge of that court is prejudiced. In that case, the motion shall be made before the expiration of 30 days from the date of the first appearance in the action of the party who is making the motion or whose attorney is making the motion.
In no event shall a judge, court commissioner, or referee entertain the motion if it is made after the drawing of the name of the first juror or if there is no jury after the making of an opening statement by counsel for the plaintiff, or if there is no opening statement by counsel for the plaintiff, then after swearing in the first witness or the giving of any evidence or after trial of the cause has otherwise commenced. If the motion is directed to a hearing other than the trial of a cause, the motion shall be made at the commencement.
In case of trials or hearings not specifically provided for in this paragraph, the procedure specified here shall be followed as closely as possible. The fact that a judge, court commissioner, or referee has presided at, or acted in connection with, a pretrial conference or other hearing, proceeding, or motion before trial and not involving a determination of contested fact issues relating to the merits, shall not preclude the later making of the motion provided for in this paragraph at the time and in the manner herein provided.
A motion under this paragraph may be made following reversal on appeal of a trial court's decision or following reversal on appeal of a trial court's final judgment if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.
Notwithstanding paragraph (4), the party who filed the appeal that reversed a trial court's final judgment may make a motion under this section regardless of whether that party or side has previously done so. The motion shall be made within 60 days after the party or the party's attorney has been notified of the assignment.
(3) A party to a civil action making that motion under this section shall serve notice on all parties five days after the motion.
(4) If the motion is duly presented, and the affidavit or declaration under penalty of perjury is duly filed, or an oral statement under oath is duly made, thereupon and without any further act or proof, the judge supervising the master calendar, if any, shall assign some other judge, court commissioner, or referee to try the cause or hear the matter.
In other cases, the trial of the cause or the hearing of the matter shall be assigned or transferred to another judge, court commissioner, or referee of the court in which the trial or matter is pending or, if there is no other judge, court commissioner, or referee of the court in which the trial or matter is pending, the Chair of the Judicial Council shall assign some other judge, court commissioner, or referee to try the cause or hear the matter as promptly as possible.
Except as provided in this section, no party or attorney shall be allowed to make more than one such motion in any action or special proceeding that is included in this section. In actions or special proceedings where more than one plaintiff or similar party or more than one defendant or similar party appears, only one motion for each side may be made in any action or special proceeding.
(5) Unless required for the convenience of the court or unless good cause is shown, a continuance of the trial or hearing shall not be granted by reason of making a motion under this section. If a continuance is granted, the cause or matter shall be continued daily or for other limited periods upon the trial or other calendar. It shall be reassigned or transferred for trial or hearing as promptly as possible.
(6) Any affidavit filed pursuant to this section shall be in substantially the following form: (Here set forth court and cause) State of California, ss. PEREMPTORY CHALLENGE
County of ________________________, being duly sworn, deposes and says that he or she is a party (or attorney for a party) to the within action (or special proceeding). That ____ the judge, court commissioner, or referee before whom the trial of the (or a hearing in the) * * * action (or special proceeding) is pending (or to whom it is assigned) is prejudiced against the party (or his or her attorney) or the interest of the party (or his or her attorney) so that affiant cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge, court commissioner, or referee.
Subscribed and sworn to before me, this ______ day of ______, 20___. (Clerk or notary public or other officer administering oath)
(7) Any oral statement under oath or declaration under penalty of perjury made pursuant to this section shall include substantially the same contents as the affidavit above.
(b) Nothing in this section shall affect or limit Section 170 or Title 4 (commencing with Section 392) of Part 2, and this section shall be construed as cumulative thereto.
(c) If any provision of this section or the application to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of the section that can be given effect without the invalid provision or application and, to this end, the provisions of this section are declared to be severable."
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