Ask the County Law Librarian – Disqualification of Judges
Q. My wife and I are getting a divorce, and the judge is making all her rulings in my soon-to-be-ex’s favor for no good reason that I can see, except that the judge doesn’t like me—she seems to be biased against men. What can I do to get rid of this judge? Can I report her to the State Bar?
A. The law and procedure for the disqualification of California superior court judges, court commissioners, and referees, is in the Code of Civil Procedure (CCP), sections 170 through 170.6. There are two basic methods a party can use to ask that a judge be disqualified from their case:
1) CCP §§ 170-175 provides the justification and procedure whereby a party may take action toward disqualification of a judge “for cause.”
2) CCP § 170.6 guarantees to parties the right to disqualify a judge without any showing of cause whatsoever. This is called a peremptory challenge.
A Section 170.6 challenge is permitted at any time before the commencement of a trial or hearing on a substantive matter in either civil or criminal court. Each side is allowed a peremptory challenge one time only. You have no control over the judge assigned to take over your case, so avoid hasty or ill-informed decisions to disqualify.
A peremptory challenge is usually made by a written motion to the court, done in proper format with specific language and supported by a declaration or affidavit made under penalty of perjury. An oral motion under oath is also allowed. There is no hearing or ruling on a timely and properly-formatted peremptory challenge. The replacement is automatic, and the case will continue as quickly as possible, perhaps hours or days, under a new judge.
There are specific deadlines and strict time frames in which a peremptory challenge must be made, depending on your court’s calendaring system. Improper timing is the number one reason that challenges are rejected.
Even if your deadline has passed for filing a timely peremptory challenge, however, you still have the right to challenge the judge for cause under CCP § 170.1. Grounds for a just cause challenge (relationship, financial interest, etc.) can arise at any time during the proceedings. Therefore, a challenge for cause is timely if raised “at the earliest practicable opportunity” after discovering the grounds for disqualification, even during trial.
Step by step procedures and sample formats for written motions, supporting declarations, and affidavits for both of these disqualification methods can be found in a set of books called California Forms of Pleading and Practice, Volume 27, Chapter 317, “Judges.” You can find this set of books at the Sacramento County Public Law Library.
The State of California Commission on Judicial Performance, rather than the State Bar, reviews complaints that charge judicial misconduct. Procedures and the form of complaint for judicial misconduct can be found on their website.
A judge’s incorrect ruling on its own does not constitute judicial misconduct. A judge who commits legal error is subject to investigation and possible discipline only if the legal error clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duties. If the incorrect ruling or legal error does not meet these standards, then it is not subject to disciplinary review. However, it may be grounds for an appeal in your case.
Do you have a question for the County Law Librarian? Just email firstname.lastname@example.org. If your question is selected your answer will appear in next Thursday’s column. Even if your question isn’t selected, though, I will still respond within two weeks.
Coral Henning, Director
@coralh & @saclawlibrarian