Recusal of Judge – CCP § 170.6 – California Code Code of Civil Procedure

Judge Removal

l292 Disqualification of Judicial Officer – Removing a Judge Peremptory Challenge  C.C.P. 170.6 Form (Orange County)   C.C.P. 170.6 Form (Los Angeles county)

Commission on Judicial Performance – Judge Complaint Online Form

Recusal of Judge – CCP § 170.1 – Removing a Judge Challenge for Cause form template below in the law area 

Law Library & Civil Self Help Center Pamphlet

How to Make a Motion to Recuse a Judge in California

Code of Civil Procedure 170.1 CCP is the California statute that says a judge can be disqualified, or removed, from presiding over a civil lawsuit or a criminal trial in certain situations.In particular, the code section states:

“(a) A judge shall be disqualified if any one or more of the following are true:

(1) (A) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding….

(2) (A) The judge served as a lawyer in the proceeding…

(3) (A) The judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding…”

Please note that other reasons do exist and the reasons within the statute are often referred to as “for cause” reasons to disqualify a judge.

“Disqualification” means that a judge is removed from a court case and an alternate judge gets assigned to the proceedings.

If one of the reasons within CCP 170.1 exists, then a party attempts to actually disqualify a judge by:

1. filing a motion to recuse, and
2. following the proper procedural elements as to filing this motion.

Please note that under the Due Process Clause of the Constitution, everyone is entitled to an impartial judiciary in a criminal matter.

Challenges “for cause” are different than peremptory challenges of a judge, per Code of Civil Procedure 170.6. A “peremptory” challenge means that a party can try to disqualify a judge on the basis that he/she is biased.

In addition to challenges for cause and peremptory challenges, a judge can be removed in California based upon:

• California’s probate code – for disqualification of probate judges, and
• California’s Constitution – for removal when it is recommended by the Commission on Judicial Performance.

1. When can a judge be disqualified from a legal case under CCP 170.1?

California Code of Civil Procedure 170.1 CCP states that a party to a civil or criminal case can try to remove a judge “for cause.” This means that the judge can be removed, or disqualified, from a case for a reason specifically listed within the statute.

Under CCP 1701.1, the “for cause” reasons as to when a judge can be disqualified are when any one or more of the following are true:

• the judge has personal knowledge of disputed evidentiary facts concerning the proceeding¹,
• the judge served as a lawyer in the proceeding, or gave advice to a party in the proceeding²,
• the judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding³,
• the judge, or the spouse of the judge, is a party to the proceeding or is an officer, director, or trustee of a party⁴,
• a lawyer or a spouse of a lawyer in the proceeding is the spouse, former spouse, child, sibling, or parent of the judge or the judge’s spouse or if such a person is associated in the private practice of law with a lawyer in the proceeding⁵,
• by reason of permanent or temporary physical impairment, the judge is unable to properly perceive the evidence or is unable to properly conduct the proceeding⁶, or
• the judge has received a contribution in excess of $1500 from a party or lawyer in the proceeding⁷.

In addition, a judge can remove himself from a case, “for cause,” if for any reason:

• the judge believes his recusal would further the interests of justice,
• the judge believes there is a substantial doubt as to his ability to be impartial, or
• a person aware of the facts might cast doubt on the judge’s ability to be impartial.⁸

2. How does a party attempt to disqualify a judge?

If one of the reasons within CCP 170.1 exists, then a party can attempt to disqualify a judge by:

1. filing a motion to recuse, and
2. following the proper procedural elements as to filing this motion.

2.1. What is a motion to recuse?

A motion to recuse is a legal motion filed in court that says a judge should be disqualified, or removed, from a legal case for a reason listed within CCP 170.1.

The motion can be brought by either a prosecutor or a defense attorney. And, a motion to recuse can be filed in either a civil suit or in a criminal trial.

Please note that under the Due Process Clause of the Constitution, everyone is entitled to an impartial judiciary in a criminal case.

2.2. What are the procedural elements in filing a motion to recuse?

When filing a motion to recuse, the document must state the specific grounds for which the judge should be disqualified.

If the motion is granted, the judge is removed from the case. If the MTR is denied, the judge remains on the case.

California law states that a challenge for cause must be filed at the earliest practicable opportunity after a party discovers the grounds for disqualification. The determination as to what is “the earliest practicable opportunity” is largely based on the facts of a given case.

Past California court cases have said that a motion to recuse was timely filed when it was brought:

• before the hearing of any issue of fact in the action⁹,
• before trial commenced¹⁰,
• before the judgment became final¹¹, and
• after judgement where ground of disqualification was not known until that time¹².

3. What are peremptory challenges of a judge?

Challenges “for cause” and different than peremptory challenges of a judge. A “peremptory” challenge means that a party can file a motion to recuse and try to remove a judge on the basis that he/she is biased.¹³

When bringing a peremptory challenge, it is not necessary for the party to show that the judge is actually biased. It is also not necessary for the party to provide any factual basis for his claim.¹⁴

The party just has to state that he believes the judge is prejudiced against him and the party does not believe he can have a fair and impartial trial.¹⁵

Once a peremptory challenge is made, the judge cannot oppose it. As long as the challenge is made in a timely manner, the judge immediately loses jurisdiction over the case. This means any action that he makes in the case shall be considered “void.”¹⁶

4. Are there other grounds for removal of a judge?

In addition to challenges for cause and peremptory challenges, a judge can be removed in California based upon some statutes and the State Constitution.

For example, California Probate Code 7060 allows for the disqualification of probate judges in some circumstances.

Further, the California Constitution provides for the disqualification of judges who have been either indicted or recommended for removal by the Commission on Judicial Performance.

Legal References:

         Resource Center for Self-Represented Litigants

                                  110 N. Grand Ave., Room 426, Los Angeles, CA 90012

       HOW TO REQUEST TO CHANGE YOUR JUDGE

This information is not intended to provide legal advice.  For legal advice, please consult with an attorney.  For more information, go to http://www.lacourt.org or visit the Los Angeles Law Library, located at 301 West 1st St., Los Angeles, CA 90012.

       There Are Two Ways to Request to Disqualify a Judge:

1. Peremptory Challenge  (See Code of Civil Procedure § 170.6)
   • In a family law case, you may automatically disqualify ONE judge without proving prejudice or bias.
     1. If you have a temporary judge (commissioner or judge pro tem), you can refuse to sign a stipulation for the temporary judge at your courtroom.
   • If your peremptory challenge is granted, a new judge will be assigned.
   • If your peremptory challenge is denied, the judge will remain on your case.
     • To raise a challenge, file an Affidavit of Prejudice Peremptory Challenge to Judicial Officer (form LACIV 015). A copy is available at https://www.lacourt.org/forms/pdf/LACIV015.pdf.  If you choose to draft your own affidavit, it must include specific language listed in the code cited above.
   • If your judge is known at least 10 days before the hearing date, you must make your motion at least 5 days before that date. To avoid missing the deadline, file your motion as soon as your trial judge is assigned.
   • If you are assigned a different judge for trial, make a motion as soon as the new judge is assigned.
   • Have a copy of the affidavit served on the other party no later than 5 days after making the motion.

La county https://www.lacourt.org/forms/pdf/LACIV015.pdf

Orange County https://www.occourts.org/forms/local/l292.pdf

2. Challenge for Cause  (See Code of Civil Procedure § 170.1- § 170.5)
   • A judge may also be challenged for cause under CCP §170.1.
   • This type of motion is less likely to be granted because specific grounds and proof are required, i.e., conflict of interest, bias, financial interest, personal knowledge of facts, and relationship to a party or attorney.
   • If your challenge is denied, the judge will will remain on your case.
   • To raise a challenge, file a written declaration, using pleading paper, that sets forth the grounds for disqualification.

1. A copy of pleading paper (form MC-030/031) is available at http://www.courts.ca.gov/forms.htm.

• The challenge must be raised with the clerk at your assigned department “at the earliest practicable opportunity” after discovering grounds for disqualification, or else it is waived. Have a copy served on the other party/attorney, and a copy personally served on the judge or clerk.

           → You may not bring a peremptory challenge or a challenge for cause after orders have already been made in your case!

  Other Methods:

 Complaint for Judicial Misconduct    (See California Code of Judicial Ethics)

• Judicial misconduct involves conduct in violation of the California Code of Judicial Ethics.  Examples: improper demeanor, failure to disqualify when the law requires, receipt of information about a case outside the presence of one party, abuse of contempt or sanctions, delay in decision-making.
• An error in a judge’s decision or ruling, by itself, is not misconduct. An appeal may be the only remedy for such an error, or there may be no remedy.  The commission will investigate the complaint and, if appropriate, impose discipline. The commission does not have the authority to change a judge’s decision, issue new orders, grant a new trial, or disqualify a judge from a case.
• Complaints must be in writing. You may use the commission’s complaint form or write a letter to the commission.
• The Commission on Judicial Performance is located at 455 Golden Gate Avenue, Suite 14400 San Francisco, California 94102.  For more information, visit the commission’s website at http://cjp.ca.gov/.

Appeal Process    (See California Rules of Court § 8.800-8.843 and 8.880-8.891)

• If a judge has made an order in your case that you believe was made in error, and that the error was harmful, you may request an appeal with the appellate division of the superior court.
• An appeal is NOT a new trial. The appellate division will review the record of what happened at court to see if certain kinds of legal errors were made.  If legal errors were made, the orders could potentially be overturned.
• For information about the appeal process, speak to an attorney, go to the county law library, or visit courts.ca.gov/.

LAW BELOW

California Code, Code of Civil Procedure – CCP § 170.1

California Code, Code of Civil Procedure – CCP § 170.6

(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.

source

28 U.S. Code § 144 – Bias or prejudice of judge

Rule 2.3: Bias, Prejudice, and Harassment

(A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice.

(B) A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, and shall not permit court staff, court officials, or others subject to the judge’s direction and control to do so.

(C) A judge shall require lawyers in proceedings before the court to refrain from manifesting bias or prejudice, or engaging in harassment, based upon attributes including but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, socioeconomic status, or political affiliation, against parties, witnesses, lawyers, or others.

(D) The restrictions of paragraphs (B) and (C) do not preclude judges or lawyers from making legitimate reference to the listed factors, or similar factors, when they are relevant to an issue in a proceeding.

In re. Personal Restraint of Swenson

Impartiality of the Judge – Judicial Bias

The right to an impartial judge is based on the Due Process Clause of the United States Constitution and is expressly set forth in many state constitutions.[16] In addition, state codes of judicial conduct require that judges be impartial. The ABA Model Code of Judicial Conduct, state code analogs, and the common law of many states use a two-part test for disqualification or recusal – a subjective and objective test.[17] The subjective test is met when the judge believes that she is, in fact, biased; the objective test is met if a disinterested person might reasonably question the judge’s impartiality. If either test is satisfied, the judge must recuse herself.[18]

Counsel may question a judge’s impartiality based on her treatment of, and comments made to or about, counsel or counsel’s client. According to Liteky v. United States,[19] judicial remarks and actions require recusal when “they reveal an opinion that derives from an extrajudicial source” – that is, the judge has relied on evidence from outside the case – or where they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.” As to the first part, judges may be exposed to extrajudicial information, but they cannot rely on it.[20] For example, the judge may overhear court staff discussing a parent’s bad behavior in the courthouse lobby, but the judge cannot issue an order based on that information unless it is introduced in evidence. In a Massachusetts case, Care and Protection of Zita, the judge granted temporary custody to CPS based on her memories of a previous dependency case that involved the mother’s other children; as a result, the appellate court reversed.[21] Further, judges cannot actively seek outside information; they cannot do web searches for the parties or the facts at issue, and they cannot ask their law clerks or other staff to do so.[22]

What isn’t Bias?

Inappropriate behavior. Litecky sets a high bar; mean or rude comments by a judge do not constitute bias unless they “reveal such a high degree of favoritism or antagonism as to make fair judgment impossible.”[23] Criticism, disapproval, or even hostility to counsel, the parties, or their cases isn’t bias unless it is extreme or pervasive.[24] Appellate courts are extremely forgiving when judges only make one or two nasty comments; they examine the entire trial to place the judge’s comments in context.[25] Even if the judge’s comment or behavior is clearly inappropriate, judges are given considerable leeway. For instance, in an Ohio case, State v. Johnson, the judge cried during sentencing because she was sympathetic to the victim’s family.[26] The appellate court affirmed; the judge was permitted to exhibit human emotion, and doing so did not show bias.[27]

Preference for a party. Judges may show a preference for one side, but only if that preference is based on information learned from the case.[28] A judge may, therefore, express her preliminary views of the merits of the case so long as those views stem from information learned at trial or observations of the parties during trial. A judge’s preference shows bias only if it is “undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree.”[29] Accordingly, if a parent equivocates during testimony, the judge can question the parent’s credibility and call him a liar. But the judge probably cannot call him the “worst liar ever” (which is excessive) and definitely cannot say he’s a liar based on extra-judicial information.

Criticism of counsel. Judges may scold and criticize counsel in an effort to control the courtroom and the progress of trial.[30] If, for example, counsel is talking over the judge or repeatedly asking leading questions to a witness on direct despite warnings to stop, the judge can criticize counsel’s performance. Indeed, the worse counsel’s behavior, the harsher the judge is permitted to be to manage the trial. A judge is not biased if she held counsel in contempt in a prior case or even in the same case.[31] Even if the judge’s poor behavior is unrelated to counsel’s misconduct, it does not indicate bias unless it is extreme, pervasive, or “reveal[s] such a high degree of favoritism or antagonism as to make fair judgment impossible.”[32]

Remanded or related dependency cases. Judges may sit on the same dependency case on remand, even if the appellate court has found prejudicial errors (although an appellate court can remand specifically to a different judge).[33] Judges who presided over a parent’s prior dependency cases involving the same or other children can sit on new cases, even if the judge terminated parental rights in the prior case.[34] The judge cannot rely on memories of the prior cases when ruling in the current case – she must rely on evidence admitted, or observations made, in the current case.[35]

What is Bias?

Judges do not get a free pass for all types of mistreatment of counsel and clients.

Unfair treatment. Sometimes a judge’s treatment of counsel is so virulent that her fairness must be questioned. For example, where the judge’s extreme harshness:

•  is not intended to address misbehaving counsel,
•  has not been triggered by counsel’s misbehavior,
•  is grossly disproportionate to counsel’s misbehavior, or
•  is aimed at only one lawyer when all are acting the same way.

In a Massachusetts case, Commonwealth v. Sylvester,[36] the judge ridiculed defense counsel, threatened to cut off her argument, and interrupted her questioning of witnesses. Most of the judge’s harsh comments were directed at her, nearly all disparaged her skills, and many had personal overtones. Meanwhile, defense counsel had conducted a skillful trial, objected respectfully, and “painstakingly attempted to preserve her client’s rights.”[37] The appellate court reversed, holding that the judge’s bias denied the defendant a fair trial.[38]

Denial of due process. Appellate courts will also reverse when a judge’s harsh treatment deprives that party of due process.[39] For example, if counsel bungles a cross-examination, the judge can call counsel inept and warn him publically that he must raise his game. But the judge cannot declare that, as a result of the incompetent cross, the client has rested. Judges also cannot, in order to “punish” a poorly behaving client or underperforming lawyer, refuse to hold a normal trial, act as a prosecutor, improperly restrict counsel’s cross-examination, prevent offers of proof, or unreasonably cut off counsel’s closing.[40]

Early determination of case merits. Appellate courts will reverse for bias when judges make up their minds on the merits before all evidence is presented.[41] Although, as noted above, tentative views of the merits are permissible before the end of trial (provided they arise from what the judge has heard and observed in the case), the judge cannot “decide” a legal issue before the end of trial. For example, in Adoption of Adina,[42] a Massachusetts case, the appellate court reversed because the trial judge stated that the mother was unfit even without a trial. Even appearing to have decided the merits before the close of evidence is reversible. In another Massachusetts case, Adoption of Tia,[43] the appellate court warned that trial judges must maintain not just fairness but the appearance of fairness; otherwise, counsel and the parties will lose faith in the impartiality of the judiciary.[44]

Expression of personal bias or prejudice. Finally, appellate courts will reverse for judicial bias when the judge expresses an actual personal bias or prejudice about the parties or counsel. For instance, judges cannot express disdain for people of a certain faith or color or an opinion that single parents are per se inadequate. In a United States Supreme Court case, Berger v. United States,[45] a criminal case in which the defendant had German ancestry, the trial judge made several insulting comments about Germans, including “[t]heir hearts are reeking with disloyalty.” The Court reversed based on bias.[46]

Removing the Judge

Sometimes it serves the client’s interests to seek recusal of a judge. As noted above, many states apply a two-part test for recusal. First, the subjective test – does the judge believe she is, in fact, biased? Second, the objective test – would a disinterested person reasonably question whether the judge is biased? If either the subjective or objective test is satisfied, the judge must recuse herself.[47] In addition, the judge should recuse herself if she has personal awareness of material, disputed facts.[48]

Counsel must file a motion to recuse at the earliest moment after learning the facts suggesting bias or improper conduct.[49] This can be tricky if the problematic statements or conduct occurred in a lobby conference or sidebar, where judges tend to be less careful with their comments about clients, counsel, and disputed facts. In such a case, counsel must move to recuse immediately after the lobby conference or sidebar. If the lobby conference or sidebar was unrecorded, counsel must, on the record, state what occurred, including the judge’s exact words (to the extent possible); otherwise, there is no record of the judge’s improper statement or action for the appellate court to review. Judges should rule on counsel’s motion to recuse in a timely fashion.[50] If a judge believes recusal is necessary, in most jurisdictions that recusal is for all purposes; the judge should have no involvement with any aspect of the case.[51] source