A defendant in a criminal case does not choose which district attorney will be assigned. Nor does the defendant have the power to request a different prosecutor. But in most states, the defense can seek to recuse a district attorney (or a prosecuting agency) if there is a bias or conflict of interest.

In California, under Penal Code 1424 a1 PC, a criminal defendant can request a different prosecutor when there is a conflict of interest that may result in the defendant not receiving a fair trial. The request is referred to as a “motion to recuse a prosecutor.” If a judge grants the motion, a substitute district attorney is assigned to the case.

Defendants can also try to remove a judge from a criminal case (or even a civil case) per California Code of Civil Procedure 170.1. This statute says that a judge can be disqualified from a case under certain circumstances, like when:

• the judge has personal knowledge of certain facts concerning the proceeding,
• the judge served as a lawyer in the proceeding, or gave advice to a party in the proceeding, and/or
• the judge has a financial interest in a proceeding or in a party to the proceeding.

Jurors are also subject to disqualification. Prior to a criminal trial, a defense attorney can try to remove a potential juror with either a:

• “for cause” challenge, or
• “peremptory” challenge.

Defendants can try to remove a prosecutor, judge, or juror in either misdemeanor or felony cases.

What is a Motion to Recuse a Prosecutor?

A motion to recuse a prosecutor is a legal request made by defendants in criminal cases whereby they ask the judge to appoint a new district attorney (DA) to the case.¹

Under California’s criminal law, a judge will grant the motion if the following are true:

1. there is a conflict of interest such that there is a possibility the DA will not act in a just manner, and
2. the conflict is so serious that it is likely that the defendant will not be treated fairly in all stages of the criminal proceeding.²

Examples of instances in which a judge granted a motion include when:

• a prosecutor tampered with evidence, specifically taking efforts to prevent the disclosure of an alleged sexual abuse victim’s medical and psychotherapy records,³ and
• there was a real risk that a district attorney’s office would be excessively eager in convicting the defendant.⁴

If a judge grants a motion to recuse, then he/she can remove a district attorney from the case or even an entire district attorney’s office from a case.

If a DA is recused, then another deputy or assistant district attorney is appointed.⁵

If a DA’s office is recused, then a special prosecutor is appointed to the case.⁶

Can a defendant try to remove a judge from a criminal or civil case?

Yes. 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.”

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 facts concerning the proceeding,
• the judge served as a lawyer in the proceeding, or gave advice to a party in the proceeding,
• the judge has a financial interest in a proceeding or in a party to the proceeding,
• the judge, or the spouse of the judge, is a party to the proceeding or is an officer, director, or trustee of a party,
• 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,
• 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, or
• the judge has received a contribution in excess of $1500 from a party or lawyer in the proceeding.⁷

A judge can also remove him- herself from a case, “for cause,” if for any reason:

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

A party can seek to disqualify a judge by bringing a motion to recuse. If granted, a new judge is assigned to the case.

Can defendants remove jurors from a case?

Yes. During jury selection, a defense attorney or public defender can try not remove a potential juror either “for cause” or via a “peremptory challenge.”

“For cause” means that a juror has expressed a bias and is not suitable to decide the case. For example, the juror may have stated that, based on religious reasons, he/she cannot pass judgment on the defendant. Lawyers are given an unlimited amount of for cause challenges.

If an attorney exercises a “peremptory challenge”, the attorney does not need to state a specific reason as to why he/she dismisses a juror. Each attorney is allowed between six and twenty peremptory challenges in a case, depending on the alleged offenses.⁹

Note, though, that an attorney cannot remove a juror via a peremptory challenge for reasons related to that juror’s race, religion, gender, or ethnicity.¹⁰ 

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

“Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.”(Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988). This ruling make DA Todd Spitzer Negligent and a conspirator18 U.S. Code § 241 to the violation of my (42-us-code-1983-civil-action ) civil rights and is a violation of code 18 U.S. Code § 242

Before we place the stigma of a criminal conviction upon any such citizen the legislative mandate must be clear and unambiguous. Accordingly that which Chief Justice Marshall has called ‘the tenderness of the law Page 11 of 48 for the rights of individuals’ [FN1] entitles each person, regardless of economic or social status, to an unequivocal warning from the legislature as to whether he is within the class of persons subject to vicarious liability.Congress cannot be deemed to have intended to punish anyone who is not ‘plainly and unmistakably’ within the confines of the statute. United States v. Lacher, 134 U.S.  624, 628, 10 S. Ct. 625, 626, 33 L. Ed. 1080; United States v. Gradwell, 243 U.S. 476,485, 37 S. Ct. 407, 61 L. Ed. 857. FN1 United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37.

We do not overlook those constitutional limitations which, for the protection of personal rights, must necessarily attend all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any merely administrative body, established by Congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the citizen. Kilbourn v. Thompson, 103 U. S. 168,196 [26: 377, 386].
We said in Boyd v. United States, 116 U. S. 616, 630 [29: 746, 751]—and it cannot be too often repeated—that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employes of the sancity of a man’s home, and the privacies of his life.
As said by Mr. Justice Field in Re Pacific R. Commission, 32 Fed. Rep. 241,250, “of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves, not merely protection of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”

“Ignorance of the law does not excuse misconduct in anyone, least of all in a sworn officer of the law.”   In re McCowan(1917), 177 C. 93, 170 P. 1100.

“All are presumed to know the law.” San Francisco Gas Co. v. Brickwedel (1882), 62 C. 641; Dore v. Southern Pacific Co. (1912), 163 C. 182, 124 P. 817; People v. Flanagan (1924), 65 C.A. 268, 223 P. 1014; Lincoln v. Superior Court (1928), 95 C.A. 35, 271 P. 1107;  San Francisco Realty Co. v. Linnard (1929), 98 C.A. 33, 276 P. 368.

“It is one of the fundamental maxims of the common law that ignorance of the law excuses no one.”  Daniels v. Dean (1905), 2 C.A. 421, 84 P. 332.

In Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002.)  held that a malicious criminal prosecution was a naked constitutional tort, and was actionable under 42 U.S.C. § 1983 under the 4th Amendment. They just said it, basically out of thin air.

FRAUD$ BY GOVERNMENT

McNally v. U.S., 483 U.S. 350, 371-372 (1987),  McNally v. U.S., 483 U.S. 350, 371-372 (1987), Quoting U.S. v. Holzer, 816 F.2d. 304, 307: “Fraud in its elementary common law sense of deceit – and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir. 1985) – includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. BURDEN OF PROOF ” 

The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.” citing Meier v. CIR, 199 F 2d 392, 396 (8th Cir. 1952) quoting 20 Am Jur, Evidence, Sec 190, page 193  Notification of legal responsibility is “the first essential of due process of law”.  See also:U.S. v. Tweel, 550 F.2d.297. “Silence can only be equated with fraud where there is a legal or moral duty to speak or when an inquiry left unanswered would be intentionally misleading.”  Clearfield Doctrine “Governments descend to the Level of a mere private corporation, and take on the characteristics of a mere private citizen…where private corporate commercial paper [Federal Reserve Notes] and securities [checks] is concerned. … For purposes of suit, such corporations and individuals are regarded as entities entirely separate from government.”

Pro$ecutor‘$ Duty to the citizen

20-659 Thompson v. Clark (04-04-2022) – Suing the Government Officially Personally tapping into their financial life legally

In its landmark decision, Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

This ruling has a complexity to it, that does not favor a malicious prosecutor or police force. 
it holds them accountable! New Supreme Court Ruling makes it easier to sue police when criminal 
charges are dropped or dismissed. This hold the prosecutor accountable because an attorney has 
a fiduciary duty to his client, meaning that a relation “exist[s] between parties to a transaction 
wherein one of the parties is duty bound to act with the utmost good faith in the benefit of the 
other party. Such a relation ordinarily arises when a confidence is reposed by one person in the 
integrity of another, and in such a relation the party in whom the confidence is reposed, if 
he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from 
his [or her] acts relating to the interest of the other party without the latter’s knowledge or consent. . . . ”

An attorney may not seek, accept or continue employment where it is not substantiated by probable cause,
 thus an attorney may not prosecute any case that is not well
- 1 Cal. Rules Prof. Conduct, Rule 1-400. 2 Id. 3 McKinnery State Bar, 62 Cal.2d 194, 196 (1964);
Culter v. State Bar of California, 71 Cal.2d 241, 249 (1969); 
see also Coulello v. State of California, 45 Cal.2d 57 (1955); 
Hallinan v. State Bar of California, 33 Cal.2d 246 (1948). 
Clearly, this duty applies not only with reference to the client but also with regard to the court, 
opposing counsel. 4 Cal. Rules Prof. Conduct, Rule 3 -200; Cal. Bus. & Prof. Code

• 6068(c). The ABA Model Rules of Professional Conduct, Rule 3.1 & 4.4, also impose a duty to the legal

system which requires both that the attorney bring only meritorious claims and that they not use inappropriate 
means in the representation of their client that embarrass, bur den, delay or violate legal rights. 
Barbara A. v. John G., 145 Cal.App.3d 369 (1983) (citing Herbert v. Lankershim, 9 Cal.2d 409, 483 (1937); 
Bacon v. Soule, 19 Cal.App. 428, 434 (1912)

new-supreme-court-ruling-makes-it-easier-to-sue-police/

42 U.S.C.A. Sec. 1983.” Trezevant v. City of Tampa (1984) 741 F.2d 336, hn. 5 Mattox v. U.S., 156 US 237,243. (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted.”

S. Carolina v. U.S., 199 U.S. 437, 448 (1905).“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”

SHAPIRO vs. THOMSON, 394 U. S. 618 April 21, 1969 .Further, the Right to TRAVEL by private conveyance for private purposes upon the Common way can NOT BE INFRINGED. No license or permission is required for TRAVEL when such TRAVEL IS NOT for the purpose of [COMMERCIAL] PROFIT OR GAIN on the open highways operating under license IN COMMERCE.

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.”

Brady v. U.S., 397 U.S. 742, 748,(1970) “Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.” The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

Alexander v.Bothsworth, 1915. “Party cannot be bound by contract that he has not made or authorized. Free consent is an indispensable element in making valid contracts.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) HALE v. HENKEL 201 U.S. 43 at 89 (1906) Hale v. Henkel was decided by the united States Supreme Court in 1906. The opinion of the court states: “The “individual” may stand upon “his Constitutional Rights“ as a CITIZEN. He is entitled to carry on his “private” business in his own way. “His power to contract is unlimited.” He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to an investigation, so far as it may tend to incriminate him. He owes no duty to the State, since he receives nothing there from, beyond the protection of his life and property. “His rights” are such as “existed” by the Law of the Land (Common Law) “long antecedent” to the organization of the State”, and can only be taken from him by “due process of law”, and “in accordance with the Constitution.” “He owes nothing” to the public so long as he does not trespass upon their rights.”

Hale v. Henkel 201 U.S. 43 at 89 (1906) Hale v. Henkel is binding on all the courts of the United States of America until another Supreme Court case says it isn’t. No other Supreme Court case has ever overturned Hale v. Henkel None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case. Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

None of the various issues of Hale v. Henkel has ever been overruled Since 1906, Hale v. Henkel has been cited by the Federal and State Appellate Court systems over 1,600 times! In nearly every instance when a case is cited, it has an impact on precedent authority of the cited case.  Compared with other previously decided Supreme Court cases, no other case has surpassed Hale v. Henkel in the number of times it has been cited by the courts. Basso v. UPL, 495 F. 2d 906 Brook v. Yawkey, 200 F. 2d 633

Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828) Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.” Griffin v. Mathews, 310 Supp. 341, 423 F. 2d 272 Hagans v. Lavine, 415 U.S. 528 Howlett v. Rose, 496 U.S. 356 (1990) Federal Law and Supreme Court Cases apply to State Court Cases. Sims v. Aherns, 271 SW 720 (1925) ”

Juri$diction

[U.S. v. Gernie, 228 F.Supp. 329 (D.C.N.Y. 1964)] Jurisdiction of court may be challenged at any stage of the proceeding, and also may be challenged after conviction and execution of judgment by way of writ of habeas corpus.

Ableman v. Booth, 21 Howard 506 (1859) “No judicial process, whatever form it may assume, can have any lawful authority outside of the limits of the juri$diction of the court or judge by whom it is issued; and an attempt to enforce it beyond these boundaries is nothing less than lawless violence.”

“Juri$diction, once challenged, cannot be assumed and must be decided.” Maine v. Thiboutot, 100 S. Ct. 250

[U.S. v. Rogers, 23 F. 658 (D.C.Ark. 1885)] In a criminal proceeding lack of subject matter jurisdiction cannot be waived and may be asserted at any time by collateral attack.

 how Jurisdiction & immunity is violated Murphy v. Ross, Civil Action No. 3:14cv870 (E.D. Va. Apr. 14, 2015)

U.S. v. Tweel, 550 F. 2d. 297, 299, 300 (1977) Silence can only be equated with fraud when there is a legal and moral duty to speak or when an inquiry left unanswered would be intentionally misleading. We cannot condone this shocking conduct… If that is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately.

Morrison v. Coddington, 662 P. 2d. 155, 135 Ariz. 480(1983). Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from speaking an untruth. In regard to courts of inferior jurisdiction, “if the record does not show upon its face the facts necessary to give jurisdiction, they will be presumed not to have existed.”

NO IMMUNITY

“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.” Bransom v. Standard Hardware, Inc., 874 S.W.2d 919, 1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.

“Fraud destroys the validity of everything into which it enters,” Nudd v. Burrows, 91 U.S 426.

“Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210

“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. “

Civil Rights Torts

Thompson v. Clark 2022 – MALICIOUS PROSECUTOR & OFFICER

Holding: Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution; an affirmative indication of innocence is not needed.

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 

403 U.S. 388 (1971), the U.S. Supreme Court held that federal officials can be sued personally for money damages for on-the-job conduct that violates the Constitution. Cases in which federal employees face personal liability cut across everything the government does in all three branches of government. Whether they are engaging in every-day law enforcement, protecting our borders, addressing national security, or implementing other critical government policies and functions, federal employees of every rank face the specter of personal liability.

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S.196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it $anction$ a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.“

Sullivan v. County of Los Angeles – 12 Cal.3d 710 – Mon, 11-04-1974 – MALICIOUS PROSECUTOR & OFFICER

Section 815.2 provides: "(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity
within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee
or his personal representative.

[8] Malicious prosecution "consists of initiating or procuring the arrest and prosecution of another under lawful process,
    but from malicious motives and without probable cause. ... [Italics in original.] The test is whether the defendant was
    actively instrumental in causing the prosecution." (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 242, pp. 2522-2523.)
    Cases dealing with actions for malicious prosecution against private persons require that the defendant has at least sought
    out the police or prosecutorial authorities and falsely reported facts to them indicating that plaintiff has committed a crime.
    (Rupp v. Summerfield (1958) 161 Cal.App.2d 657, 663 [326 P.2d 912]; Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 544-545 [222 P.2d 136].)
    Similarly the suits against government employees or entities cited by the Senate Committee in commenting upon section 821.6
    all involve the government employees' acts in filing charges or swearing out affidavits of criminal activity against the plaintiff.
    fn. 9 No case has predicated a finding of malicious prosecution on the holding of a person in jail beyond his term or beyond the completion
    of all criminal proceedings against him.United States v. Wiltberger

citedhttps://goodshepherdmedia.net/sullivan-v-county-of-los-angeles/

Civil Rights

Boyd v. United, 116 U.S. 616 at 635 (1885) Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure.This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to be watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis.”

Downs v. Bidwell, 182 U.S. 244 (1901) “It will be an evil day for American Liberty if the theory of a government outside supreme law finds lodgement in our constitutional jurisprudence. No higher duty rests upon this Court than to exert its full authority to prevent all violations of the principles of the Constitution.”

Duncan v. Missouri, 152 U.S. 377, 382 (1894)“Due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Giozza v. Tiernan, 148 U.S. 657, 662 (1893), Citations Omitted “Undoubtedly it(the FourteenthAmendment) forbids any arbitrary deprivation of life, liberty or property, and secures equal protection to all under like circumstances in the enjoyment of their rights… It is enough that there is no discrimination in favor of one as against another of the same class. …And due process of law within the meaning of the(Fifthand Fourteenth) amendment is secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.”

Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885)“The rule of equality… requires the same means and methods to be applied impartially to all the constitutents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances”.

Butz v. Economou, 98 S. Ct. 2894 (1978); United States v. Lee, 106 U.S. at 220, 1 S. Ct. at 261 (1882) “No man [or woman] in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government from the highest to the lowest, are creatures of the law, and are bound to obey it.”

Olmstad v. United States, (1928) 277 U.S. 438 “Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

Mallowy v. Hogan, 378 U.S. 1“All rights and safeguards contained in the first eight amendments to the federal Constitution are equally applicable.”

U.S. v. Lee, 106 U.S. 196, 220 1 S. Ct. 240, 261, 27 L. Ed 171 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law are bound to obey it.” “It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes on the exercise of the authority which it gives.”

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and attach a fee to it.”

Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.“

Miranda v. Arizona, 384 U.S. 436, (1966) “Where rights secured by the Constitution are involved, there can be no rule making or legislation, which would abrogate them.”

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”

Miller v. U.S., 230 F.2d. 486 ,489 “The claim and exercise of a Constitutional right cannot be converted into a crime.“

Brady v. U.S., 397 U.S. 742, 748,(1970)“Waivers of Constitutional Rights, not only must they be voluntary, they must be knowingly intelligent acts done with sufficient awareness.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. The constitutional theory is that we the people are the sovereigns, the state and federal officials only our agents.”

When any court violates the clean and unambiguous language of the Constitution, a fraud is perpetrated and no one is bound to obey it. (See 16 Ma. Jur. 2d 177, 178) State v. Sutton, 63 Minn. 147, 65 NW 262, 30 L.R.A. 630 Am. 459.

“The ‘liberty’ guaranteed by the constitution must be interpreted in the light of the common law, the principles and history of which were familiar and known to the framers of the constitution. This liberty denotes the right of the individual to engage in any of the common occupations of life, to locomote, and generally enjoy those rights long recognized at common law as essential to the orderly pursuit of happiness by free men.” Myer v. Nebraska, 262 U .S. 390, 399; UnitedStates v. Kim Ark, 169 U.S. 649, 654.

“An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.” Norton vs. Shelby County, 118 US 425 p. 442.  “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

“No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”  16 Am Jur 2nd, Sec 177 late 2d, Sec 256.

All laws which are repugnant to the Constitution are null and void. Chief Justice Marshall, Marbury vs Madison, 5, U.S. (Cranch) 137, 174, 176 (1803).

It cannot be assumed that the framers of the constitution and the people who adopted it, did not intend that which is the plain import of the language used.   When the language of the constitution is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of legal learning, to restrict its obvious meaning to avoid the hardships of particular cases.  We must accept the constitution as it reads when its language is unambiguous, for it is the mandate of the sovereign power. Cook vs Iverson, 122, N.M. 251.

It is a fundamental principle in our institutions, indispensable to the preservation of public liberty, that one of the separate departments of government shall not usurp powers committed by the Constitution to another department.  Mugler v. Kansas, 123 U.S. 623, 662.

An unconstitutional law is not a law, it confers no rights, imposes no duties, and affords no protection. Norton vs. Shelby County, 118 US 425.

“Primacy of position in our state constitution is accorded the Declaration of Rights; thus emphasizing the importance of those basic and inalienable rights of personal liberty and private property which are thereby reserved and guaranteed to the people and protected from arbitrary invasion or impairment from any governmental quarter. The Declaration of Rights constitutes a limitation upon the powers of every department of the state government. State ex rel. Davis v.Stuart.64 A.L.R. 1307, 97 Fla. 69, 120 So. 335.

“The rights of the individual are not derived from governmental agencies, either municipal, state, or federal, or even from the Constitution. They exist inherently in every man, by endowment of the Creator, and are merely reaffirmed in the Constitution, and restricted only to the extent that they have been voluntarily surrendered by the citizenship to the agencies of government. The people’s rights are not derived from the government, but the government’s authority comes from the people. The Constitution but states again these rights already existing, and when legislative encroachment by the nation, state, or municipality invade these original and permanent rights, it is the duty of the courts to so declare, and to afford the necessary relief. City of Dallas, et al. v. Mitchell, 245 S. W. 944, 945-46 (1922).

The US Constitution is designated as a supreme enactment, a fundamental act of legislation by the people of the state.   The constitution is legislation direct from the people acting in their sovereign capacity, while a statute is legislation from their representatives, subject to limitations prescribed by the superior authority. Ellingham v. Dye, 178 Ind.  336; NE 1; 231 U.S. 250; 58 L. Ed. 206; 34 S. Ct. 92; Sage v. New York, 154 NY 61; 47 NE 1096.

“Owner has constitutional right to use and enjoyment of his property.” Simpson v. Los Angeles(1935), 4 C.2d 60, 47 P.2d 474.

“We find it intolerable that one constitutional right should have to be surrendered in order to assert another”. SIMMONS v US, supra.

“When rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.”Miranda vs.Arizona, 384 US 436 p. 491.

“The claim and exercise of a Constitutional right cannot be converted into a crime.”Miller v. U.S. 230 F 2d 486, 489.

“History is clear that the first ten amendments to the Constitution were adopted to secure certain commonlawrights of the people, against invasion by the Federal Government.” Bell v. Hood, 71 F.Supp., 813, 816 (1947) U.S.D.C. — So. Dist. CA.

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

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

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

Distinguishing Request for Custody from Request for Visitation

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

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

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

Child’s Best Interest in Custody Cases

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

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

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules:
Text Messages Sent on Private Government Employees Lines
Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rules of Admissibility – Evidence Admissibility

Confrontation Clause – Sixth Amendment

Exceptions To The Hearsay Rule – Confronting Evidence

Prosecutor’s Obligation to Disclose Exculpatory Evidence

Successful Brady/Napue Cases – Suppression of Evidence

Cases Remanded or Hearing Granted Based on Brady/Napue Claims

Unsuccessful But Instructive Brady/Napue Cases

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Frivolous, Meritless or Malicious Prosecution – fiduciary duty

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