Tue. Apr 16th, 2024

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 PerformanceJudge 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:

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:

  1. California Code of Civil Procedure 170.1a1A CCP.
  2. California Code of Civil Procedure 170.1a2A CCP.
  3. California Code of Civil Procedure 170.1a3A CCP.
  4. California Code of Civil Procedure 170.1a4 CCP.
  5. California Code of Civil Procedure 170.1a5 CCP.
  6. California Code of Civil Procedure 170.1a7 CCP.
  7. California Code of Civil Procedure 170.1a9A CCP.
  8. California Code of Civil Procedure 170.1a6 CCP.
  9. People v. Schoonderwood (1945), 72 Cal. App. 2d 125.
  10. Jacobs v. Superior Court of Los Angeles County (1959), 53 Cal. 2d 187.
  11. Lindsay-Strathmore Irrigation Dist. v. Superior Court of Tulare County (1920), 182 Cal. 315.
  12. Muller v. Muller (1965), 235 Cal. App. 2d 341.
  13. California Code of Civil Procedure 170.6 CCP.
  14. See same. See also Solberg v. Superior Court (1977) 19 Cal.3d 182.
  15. See California Code of Civil Procedure 170.6 CCP.
  16. See same.

 


 

         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

  1. 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

(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.

(B) A judge shall be deemed to have personal knowledge within the meaning of this paragraph if the judge, or the spouse of the judge, or a person within the third degree of relationship to either of them, or the spouse of such a person is to the judge’s knowledge likely to be a material witness in the proceeding.

(2)(A) The judge served as a lawyer in the proceeding, or in any other proceeding involving the same issues he or she served as a lawyer for a party in the present proceeding or gave advice to a party in the present proceeding upon a matter involved in the action or proceeding.

(B) A judge shall be deemed to have served as a lawyer in the proceeding if within the past two years:

(i) A party to the proceeding, or an officer, director, or trustee of a party, was a client of the judge when the judge was in the private practice of law or a client of a lawyer with whom the judge was associated in the private practice of law.

(ii) A lawyer in the proceeding was associated in the private practice of law with the judge.

(C) A judge who served as a lawyer for, or officer of, a public agency that is a party to the proceeding shall be deemed to have served as a lawyer in the proceeding if he or she personally advised or in any way represented the public agency concerning the factual or legal issues 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.

(B) A judge shall be deemed to have a financial interest within the meaning of this paragraph if:

(i) A spouse or minor child living in the household has a financial interest.

(ii) The judge or the spouse of the judge is a fiduciary who has a financial interest.

(C) A judge has a duty to make reasonable efforts to inform himself or herself about his or her personal and fiduciary interests and those of his or her spouse and the personal financial interests of children living in the household.

(4) The judge, or the spouse of the judge, or a person within the third degree of relationship to either of them, or the spouse of such a person is a party to the proceeding or an officer, director, or trustee of a party.

(5) 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 proceeding.

(6)(A) For any reason:

(i) The judge believes his or her recusal would further the interests of justice.

(ii) The judge believes there is a substantial doubt as to his or her capacity to be impartial.

(iii) A person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial.

(B) Bias or prejudice toward a lawyer in the proceeding may be grounds for disqualification.

(7) By reason of permanent or temporary physical impairment, the judge is unable to properly perceive the evidence or is unable to properly conduct the proceeding.

(8)(A) The judge has a current arrangement concerning prospective employment or other compensated service as a dispute resolution neutral or is participating in, or, within the last two years has participated in, discussions regarding prospective employment or service as a dispute resolution neutral, or has been engaged in that employment or service, and any of the following applies:

(i) The arrangement is, or the prior employment or discussion was, with a party to the proceeding.

(ii) The matter before the judge includes issues relating to the enforcement of either an agreement to submit a dispute to an alternative dispute resolution process or an award or other final decision by a dispute resolution neutral.

(iii) The judge directs the parties to participate in an alternative dispute resolution process in which the dispute resolution neutral will be an individual or entity with whom the judge has the arrangement, has previously been employed or served, or is discussing or has discussed the employment or service.

(iv) The judge will select a dispute resolution neutral or entity to conduct an alternative dispute resolution process in the matter before the judge, and among those available for selection is an individual or entity with whom the judge has the arrangement, with whom the judge has previously been employed or served, or with whom the judge is discussing or has discussed the employment or service.

(B) For the purposes of this paragraph, all of the following apply:

(i) “Participating in discussions” or “has participated in discussion” means that the judge solicited or otherwise indicated an interest in accepting or negotiating possible employment or service as an alternative dispute resolution neutral, or responded to an unsolicited statement regarding, or an offer of, that employment or service by expressing an interest in that employment or service, making an inquiry regarding the employment or service, or encouraging the person making the statement or offer to provide additional information about that possible employment or service.  If a judge’s response to an unsolicited statement regarding, a question about, or offer of, prospective employment or other compensated service as a dispute resolution neutral is limited to responding negatively, declining the offer, or declining to discuss that employment or service, that response does not constitute participating in discussions.

(ii) “Party” includes the parent, subsidiary, or other legal affiliate of any entity that is a party and is involved in the transaction, contract, or facts that gave rise to the issues subject to the proceeding.

(iii) “Dispute resolution neutral” means an arbitrator, mediator, temporary judge appointed under Section 21 of Article VI of the California Constitution , referee appointed under Section 638 or 639 , special master, neutral evaluator, settlement officer, or settlement facilitator.

(9)(A) The judge has received a contribution in excess of one thousand five hundred dollars ($1500) from a party or lawyer in the proceeding, and either of the following applies:

(i) The contribution was received in support of the judge’s last election, if the last election was within the last six years.

(ii) The contribution was received in anticipation of an upcoming election.

(B) Notwithstanding subparagraph (A), the judge shall be disqualified based on a contribution of a lesser amount if subparagraph (A) of paragraph (6) applies.

(C) The judge shall disclose any contribution from a party or lawyer in a matter that is before the court that is required to be reported under subdivision (f) of Section 84211 of the Government Code , even if the amount would not require disqualification under this paragraph.  The manner of disclosure shall be the same as that provided in Canon 3E of the Code of Judicial Ethics.

(D) Notwithstanding paragraph (1) of subdivision (b) of Section 170.3 , the disqualification required under this paragraph may be waived by the party that did not make the contribution unless there are other circumstances that would prohibit a waiver pursuant to paragraph (2) of subdivision (b) of Section 170.3 .

(b) A judge before whom a proceeding was tried or heard shall be disqualified from participating in any appellate review of that proceeding.

(c) At the request of a party or on its own motion an appellate court shall consider whether in the interests of justice it should direct that further proceedings be heard before a trial judge other than the judge whose judgment or order was reviewed by the appellate court.source


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.

(2) A party to, or an attorney appearing in, an 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 10 days before the date set for trial or hearing, the motion shall be made at least 5 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 cause that has been assigned to a judge for all purposes, the motion shall be made to the assigned judge or to the presiding judge by a party within 10 days after notice of the all purpose assignment, or if the party has not yet appeared in the action, then within 10 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 to 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 the action, then within 15 days after the appearance.  If the court in which the action is pending is authorized to have no more than one judge, and the motion claims that the duly elected or appointed judge of that court is prejudiced, 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 plaintiff, or if there is no opening statement by counsel for 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 not later than the commencement of the hearing.  In the case of trials or hearings not specifically provided for in this paragraph, the procedure specified herein shall be followed as nearly 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 prior to 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 resulted in the reversal of a final judgment of a trial court 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 no later than five days after making 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 permitted to make more than one such motion in any one action or special proceeding pursuant to this section.  In actions or special proceedings where there may be more than one plaintiff or similar party or more than one defendant or similar party appearing in the action or special proceeding, only one motion for each side may be made in any one 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 the making of a motion under this section.  If a continuance is granted, the cause or matter shall be continued from day to day or for other limited periods upon the trial or other calendar and 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.

source

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

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

(June 25, 1948, ch. 646, 62 Stat. 898; May 24, 1949, ch. 139, § 65, 63 Stat. 99.)

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

Interesting case.  In In re. Personal Restraint of Swenson, WA Court of Appeals decided a judge should disqualify themselves from sentencing a defendant’s case if the judge’s impartiality might be reasonably questioned, but absent evidence of actual or potential bias, an appearance of fairness claim is without merit.
Mr. Swenson was sentenced for several sex offenses by a judge who prosecuted him 20 years earlier on an unrelated juvenile case.  Swenson did not ask the judge to recuse herself at the sentencing hearing on the sex offenses.  Nothing in the record indicated the judge remembered Swenson.  The judge imposed the agreed recommended sentence.  Swenson did not appeal the conviction, but he later filed a Personal Restraint Petition asking for a new sentencing hearing.  he cited the Appearance of Fairness Doctrine and the Code of Judicial Conduct.
The Court of Appeals reasoned that a judge should be disqualified if their impartiality is called into question.  However, in this case there is no showing of actual or potential bias.  The mere fact that a judge prosecuted a defendant in the past does not disqualify the judge from hearing the case today.
Moreover, the Court argued there is no basis to reasonably question whether Swenson received a fair, impartial, and neutral hearing.  The record shows the judge followed the parties’ agreed sentencing recommendation and the sentencing hearing was fair and impartial.  And nothing in the record indicates that the sentencing judge was aware of her involvement as a prosecutor 20 years earlier in an unrelated juvenile case against Swenson.
My opinion?  Seems fair.  In practice, judges typically recuse themselves upon realizing they defended or prosecuted the defendant months/years ago.  However, if the judge can’t remember, and has not been reminded by the defendant of their previous involvement, then the judge has no duty to recuse themselves.  And as far as disqualifying a judge is concerned, there must be some showing that the judge was biased for or against the defendant.  It’s common sense. source

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


To Learn More…. Read MORE Below and click the links Below 


Abuse & Neglect The Reporters  (Police, D.A & Medical & the Bad Actors)

Mandated Reporter Laws – Nurses, District Attorney’s, and Police should listen up
If You Would Like to Learn More About:
The California Mandated Reporting LawClick Here

To Read the Penal Code § 11164-11166 – Child Abuse or Neglect Reporting Act – California Penal Code 11164-11166Article 2.5. (CANRAClick Here

 Mandated Reporter formMandated ReporterFORM SS 8572.pdfThe Child Abuse

ALL POLICE CHIEFS, SHERIFFS AND COUNTY WELFARE DEPARTMENTS  INFO BULLETIN:
Click Here Officers and DA’s
 for (Procedure to Follow)

It Only Takes a Minute to Make a Difference in the Life of a Child learn more below

You can learn more here California Child Abuse and Neglect Reporting Law  its a PDF file


Learn More About True Threats Here below….

We also have the The Brandenburg v. Ohio (1969)1st Amendment

CURRENT TEST = We also have the TheBrandenburg testfor incitement to violence 1st Amendment

We also have the The Incitement to Imminent Lawless Action Test 1st Amendment

We also have the True Threats – Virginia v. Black is most comprehensive Supreme Court definition – 1st Amendment

We also have the Watts v. United StatesTrue Threat Test – 1st Amendment

We also have the Clear and Present Danger Test – 1st Amendment

We also have the Gravity of the Evil Test – 1st Amendment

We also have the Elonis v. United States (2015) – Threats – 1st Amendment


Learn More About What is Obscene…. be careful about education it may enlighten you

We also have the Miller v. California 3 Prong Obscenity Test (Miller Test) – 1st Amendment

We also have the Obscenity and Pornography – 1st Amendment


Learn More About Police, The Government Officials and You….

$$ Retaliatory Arrests and Prosecution $$

We also have the Brayshaw v. City of Tallahassee1st Amendment Posting Police Address

We also have the Publius v. Boyer-Vine –1st Amendment Posting Police Address

We also have the Lozman v. City of Riviera Beach, Florida (2018) – 1st Amendment – Retaliatory Police Arrests

We also have the Nieves v. Bartlett (2019)1st Amendment – Retaliatory Police Arrests

We also have the Hartman v. Moore (2006)1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims
Against Government Officials1st Amendment

We also have the Freedom of the Press – Flyers, Newspaper, Leaflets, Peaceful Assembly – 1st Amendment

We also have the Insulting letters to politician’s home are constitutionally protected, unless they are ‘true threats’ – Letters to Politicians Homes – 1st Amendment

We also have the First Amendment Encyclopedia very comprehensive 1st Amendment


ARE PEOPLE LYING ON YOU? CAN YOU PROVE IT? IF YES…. THEN YOU ARE IN LUCK!

We also have the Penal Code 118 PC – California Penalty of “Perjury” Law

We also have the Federal Perjury – Definition by Law

We also have the Penal Code 132 PCOffering False Evidence

We also have the Penal Code 134 PCPreparing False Evidence

We also have the Penal Code 118.1 PCPoliceOfficer$ Filing False Report$

We also have the Spencer v. PetersPoliceFabrication of Evidence – 14th Amendment

We also have the Penal Code 148.5 PC –  Making a FalsePoliceReport in California

We also have the Penal Code 115 PCFiling a False Document in California


Sanctions and Attorney Fee Recovery for Bad Actors

FAM § 3027.1 – Attorney’s Fees and Sanctions For False Child Abuse AllegationsFamily Code 3027.1 – Click Here

FAM § 271 – Awarding Attorney Fees– Family Code 271 Family Court SanctionClick Here

Awarding Discovery Based Sanctions in Family Law Cases – Click Here

FAM § 2030 – Bringing Fairness & Fee RecoveryClick Here

Zamos v. StroudDistrict Attorney Liable for Bad Faith ActionClick Here


 Pro$ecutorial Mi$conduct – Judicial & Pro$ecutorial Conduct

Prosecutor$

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

Judge$

Prosecution Of Judges For Corrupt Practice$

Code of Conduct for United States Judge$

Judicial Immunity from Civil and Criminal Liability

Recusal of Judge – CCP § 170.1Removal a Judge – How to Remove a Judge

l292 Disqualification of Judicial OfficerC.C.P. 170.6 Form

How to File a Complaint Against a Judge in California?

Commission on Judicial PerformanceJudge Complaint Online Form


Misconduct by Government Know Your RightsClick Here (must read!)

 Under 42 U.S.C. $ection 1983 – Recoverable Damage$

42 U.S. Code § 1983 – Civil Action for Deprivation of Right$

$ection 1983 LawsuitHow to Bring a Civil Rights Claim

18 U.S. Code § 242Deprivation of Right$ Under Color of Law

18 U.S. Code § 241Conspiracy against Right$

$uing for MisconductKnow More of Your Right$

Police Misconduct in CaliforniaHow to Bring a Lawsuit

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – makes it easier to sue police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & ProsecutorRules of Professional Conduct

Functions and Duties of the ProsecutorProsecution Conduct

What is Sua Sponte and How is it Used in a California Court? 

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidencefrom Your Case 


RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the  Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the 9.32 Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECT$ all US CITIZEN$

We also have the California Civil Code Section 52.1Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of RightsSCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have a SEARCH of our site for all articles relating for PARENTS RIGHTS Help!


GRANDPARENT CASE LAW 

Troxel v. Granville, 530 U.S. 57 (2000)Grandparents – 14th Amendment

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

Parent’s Rights & Children’s Bill of Rights

Cal State Bar PDF to read about Three Parent Law The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf


DUE PROCESS READS>>>>>>

Due Process vs Substantive Due Process learn moreHERE

Understanding Due Process  – This clause caused over 200 overturns in just DNA alone Click Here

Mathews v. EldridgeDue Process – 5th & 14th Amendment Mathews Test3 Part TestAmdt5.4.5.4.2 Mathews Test

UnfriendingEvidence – 5th Amendment

At the Intersection of Technology and Law

We also have the Introducing TEXT & EMAIL Digital Evidence in California Courts  1st Amendment
so if you are interested in learning about 
Introducing Digital Evidence in California State Courts
click here for SCOTUS rulings


Retrieving Evidence / Internal Investigation Case 

Conviction Integrity Unit (“CIU”) of the Orange County District Attorney OCDAClick Here

Fighting Discovery Abuse in LitigationForensic & Investigative AccountingClick Here

Orange County Data, BodyCam, Police Report, Incident Reports, and all other available known requests for data below: 

APPLICATION TO EXAMINE LOCAL ARREST RECORD UNDER CPC 13321 Click Here

Learn About Policy 814: Discovery RequestsOCDA Office – Click Here

Request for Proof In-Custody Form Click Here

Request for Clearance Letter Form Click Here

Application to Obtain Copy of State Summary of Criminal HistoryForm Click Here

Request Authorization FormRelease of Case InformationClick Here

CPRA Public Records Act Data Request – Click Here

Here is the Public Records Service Act Portal for all of CALIFORNIAClick Here


Appealing/Contesting Case/Order/Judgment/Charge/ Suppressing Evidence

First Things First: What Can Be Appealed and What it Takes to Get StartedClick Here

Options to Appealing– Fighting A Judgment Without Filing An Appeal Settlement Or Mediation 

Cal. Code Civ. Proc. § 1008 Motion to Reconsider

Penal Code 1385Dismissal of the Action for Want of Prosecution or Otherwise

Penal Code 1538.5Motion To Suppress Evidence in a California Criminal Case

CACI No. 1501 – Wrongful Use of Civil Proceedings

Penal Code “995 Motions” in California –  Motion to Dismiss

WIC § 700.1If Court Grants Motion to Suppress as Evidence

Suppression Of Exculpatory Evidence / Presentation Of False Or Misleading Evidence – Click Here

Notice of Appeal Felony (Defendant) (CR-120)  1237, 1237.5, 1538.5(m) – Click Here


 Epic Criminal / Civil Right$ SCOTUS Help Click Here

At issue in Rosenfeld v. New Jersey (1972) was whether a conviction under state law prohibiting profane language in a public place violated a man's First Amendment's protection of free speech. The Supreme Court vacated the man's conviction and remanded the case for reconsideration in light of its recent rulings about fighting words. The man had used profane language at a public school board meeting. (Illustration via Pixabay, public domain) Epic Parents SCOTUS Ruling Parental Right$ Help Click Here

Judge’s & Prosecutor’s Jurisdiction– SCOTUS RULINGS on


 


Family Treatment Court Best Practice Standards

Download Here this Recommended Citation


Please take time to learn new UPCOMING 

The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.