How Judges Recuse Themselves
Judge recusal is the legal term used to describe the process of asking another, probably more senior, Judge to hear your case instead of the trial level Judge that was initially assigned. This is usually done because when a person files a family case, they are given a case number as well as a Judge. A calendar is public information in the USA. So it is easy for anyone to look up which Judge is assigned to a particular case. Sometimes these things take place behind the scenes when a new case is filed. It would not be unusual for a person filing a divorce and in a neighborhood with judges to know that their neighbor, or business acquaintance, is the division judge assigned to their case.
Few people want a local judge who knows them to preside over their case if there is even a hint of indicia of bias. Ordinarily there is nothing that can be done about this if all was well with the parties , but if you were fired from a job because of a sexual harassment claim, or if a relative was killed by a drunk driver, you may fear that that same Judge is not going to be your biggest supporter outside of a prayer session. So recusal becomes necessary.
Sometimes recusal is necessary because the Judge is having a bad day or perhaps just very tired that morning and cannot muster the energy to give your case the attention it requires. If one of the lawyers has a really good reputation and the Judge was aware of this, he may ask that all cases where this attorney appears be transferred to another Judge.
In some cases, the Judge does not want to hear the case but is unwilling to restrict the lawyer’s right to appear before the Judge in other matters. Judges do not like to run in to lawyers they have refused to hear cases for in the supermarket, so they have the option of recusal or discretion.
Judge recusal is uncommon but it does happen occasionally.
Legal Basis to Ask for a New Judge
The legal grounds for requesting a different judge in family court are often nuanced and complex. In many jurisdictions, a party may only request a reassignment of judges on the basis of statutory predicates as set forth in the state or local rules for judicial administration. For example, North Carolina judges are assigned per district in the interim periods from the end of one term of court to the beginning of the next. Thus, there are two terms of court per year in which a judge is rotating between several different courthouse locations in each judicial district. During these interim periods, judicial assignments may be modified at the discretion of the Chief Judge for administrative purposes. The local rules for the Judicial Districts of Davidson, Davie, and Rowan County, North Carolina (District 19B) provide that "[a]ny request by a party to have a specific judge preside over a matter should be presented to the Clerk of Superior Court at least 30 days before the hearing or trial." However, a party requesting a new judge must first demonstrate a legal foundation for such a request.
These legal grounds often include the following: In addition, if there has been or will be a change in the presiding judge from one term of court to the next, the Chief Judge of the district or other administrative authority has broad powers, in the interest of justice or otherwise, to reassign cases. Most importantly, any request for the recusal of a judge should always be made in good faith, and never for the purposes of harassment.
The Request Process, Step by Step
Step 1: Investigate Your Options
Before you can act on any perception of unfairness, you need to know exactly what you want. Do you simply want to file a new motion and hope for the best? Is your goal to have your divorce decree changed or set aside? Maybe you’re worried about family court bias in a criminal proceeding. You can’t effectively change judges without a clear target.
Step 2: Be Cautious in Your Rhetoric
It’s easy to get emotional when you realize that some sort of wrongdoing may have occurred, but if you begin any official process with a demand for justice — or worse, threats — your appeal may be viewed as misguided. Be careful in how you qualify the potential judge’s actions. Stick to the facts. Avoid using charged words that may give the impression of bias.
Step 3: Create and Submit the Necessary Motion or Petition
There is no single form for every judge recusal, but many states have laid out a fairly straightforward process. You’ll likely need to complete a form for petitioning the court chief judge, whose responsibility it is to assign cases.
In many areas, you’ll need to submit this form no less than 30 days before the hearing where you seek a new judge. If you fail to meet this deadline, your request will likely be rejected. You may also need to present strong evidence of your reasons for recusal. It helps to present affidavits from those who believe bias may have contributed to an unjust result.
Step 4: Prepare for Potential Client Fact Review
It’s not unusual for the judge who reviews your recusal request to perform an interview with your client. Offer to be present during this appointment, which can often be done via phone or video conferencing. The judge may also schedule a hearing for the following weeks.
Step 5: Attend the Judge Recusal Hearing
During your hearing, you’ll have the chance to present evidence supporting your belief that the judge involved made a decisive error. Even if the judge ultimately decides to retain the authority to handle your case, you’ll at least have an opportunity to make the case for a fresh start in front of a different judge.
Pitfalls and Possible Repercussions
Even if the party requesting the new judge has good reason to do so, the request may be denied. Because a transfer of a case to a different judge disrupts the orderly flow of a court’s business, judges are reluctant to grant such motions except for the most compelling reasons. Taxpayers also pay for the disruption of having cases assigned to different judges. Remember that if a judge finds that there is not good cause for a different judge to hear a case, the judge will deny the request for a different judge. If the case involves another county courthouse, the existing judge can set another hearing, or transfer the matter to the presiding judge of the requested, different county.
If the judge grants the request for a different judge to hear the matter , another judge will be assigned. All information regarding the Family Court Service should be submitted to the different judge as if the matter had been initiated in that courtroom. The different judge is free to rule on the matters, whether or not the parties had filed the paperwork in the judge’s own courtroom. The different judge’s rulings are entered in the different judge’s case management system. There is a risk that the different judge may accept what the other judge considered and ruled on; this procedural, or "collateral" estoppel could eliminate the ability to raise the issues again, and be successful. If the judge denies the motion, the requesting party will likely be out of luck and may have to live with whatever the existing judge rules.
Professional Tips and Considerations
For those considering filing a motion to shift judges, it is strongly recommended that the motion be filed with the assistance of an experienced family law attorney. A judge’s decision on such a motion is not likely to be voluntary, making it important that the moving party has thoroughly evaluated the strategic implications of making such a request.
The legal standard is subjective in the context of a motion to change judges, and that gives the judge a lot of room to interpret the reason(s) for the request in a variety of ways. It is highly likely that the presiding judge will see a motion to strike or disqualify another judge as an "accusation," which may put them on the defensive in their decision to deny your motion. That has serious ramifications in the context of a family law case because family law judges have a lot of power over the outcome of a case, especially if there are allegations of domestic violence or child abuse involved. If a judge is set on denying your motion, they may choose a response that is not favorable to you (e.g. extending a temporary restraining order or awarding more parenting time to the other parent). Whether those results are intentional or not, they can cause serious problems for your case.
Case Studies and Examples
Real-life scenarios or case studies that can be used to illustrate the process of requesting a different judge in family court
Case Study 1: Dissolution of Marriage and Change of Judge
In the matter of In re Marriage of Ernest and Darlene Hess, the defendant father requested a change of judge after the trial court granted the plaintiff mother’s motion in limine prohibits admission of evidence of following matters at the trial on April 6, 2010: Defense argued that the proposed testimony of the six witnesses was relevant, led to admissible evidence, and was not hearsay. Defense argued that the testimony would tell family composition, the father’s great-grandparents were married for more than 50 years. The trial court found that defense fails to make the offer of proof; therefore, the Court excluded the testimony of the six witnesses. Hearing was held. At the end of hearing, the mother filed a motion for an interim award of $3,100 and the father argued that he did not have the money. On June 16, 2010, the family court ordered the following: "The Court is holding both parties in contempt for having violated the Judgement & Decree by permitting the minor children to reside overnight at their respective homes; since the Minor children were born out of wedlock, both parents share equal rights regarding Custody: [The father] will spend one-half of the time with the minor children during the summer months." The Court ordered defendant to pay $3,500 in attorney’s fees, $4,700 in back support, $600 per month for child support; defendant must pay plaintiff her one-half of the net proceeds of the sale of their house.
Case Study 2: Domestic Violence
In the matter of Yang and Thao Quach v. Vinh Nish Quach, the plaintiff husband filed a complaint for a domestic violence restraining order. Hearing was held. The judge found that plaintiff proved all the elements by a preponderance of the evidence. The judge issued a domestic violence restraining order. Later, the judge petitioned the Commission on Judicial Performance, requesting voluntary retirement. She cited the devastating impact on her mental and physical health from constant media coverage, including unsubstantiated and sometimes malicious allegations by anonymous accusers on blogs, listservs, and other sites. She realized her honor was lost. The judge sought to demonstrate that judges should not be subject to such inhumane treatment. She stated, "I can no longer be impartial in cases where I am challenged peremptorily with no reason given. Sometimes my ability is challenged as a result of a domestic violence case where I granted a restraining order and the next spouse to enter my court was requesting to reverse my decision." The judge stated that she did not want to use her name in the media; she preferred her name not be acknowledged.
Case Study 3: Requesting a Different Judge After a Divorce
In the matter of Gagne and Gagne , after the divorce, the wife provided her husband with the first of six motions to set a trial date, an expert report, copies of interrogatory responses, and letters to the family court, the wife’s attorney, and the husband’s attorney. The husband’s attorney filed numerous applications to prohibit discovery. His attorney did not respond to Plaintiff’s letters. The wife filed a motion for contempt, she sought a certificate of default (requiring the husband to pay her expert), and she asked the family court for a discovery conference. Husband’s attorney finally responded to the discovery request. However, he failed to provide the vocational expert’s report to the wife. The wife filed a motion to compel a response from the vocational expert. The family court ruled that the husband had good cause not to respond to the wife’s interrogatories previously served. The Court concluded that the discovery is not being unreasonably delayed and encouraged the counsel for both parties to set an early settlement conference. The Court ruled that the wife must bear the responsibility for the costs and expenses for her vocational evaluation. The Court cited that the Husband shall pay $2,000 for the professional services of the wife’s attorney and $5,000 for the services of the wife’s expert. The wife’s expert provided specific opinions regarding job opportunities for the plaintiff within her skill base and training, and the amount and nature of work available. The wife filed a pretrial statement. She proposed to divide the residual marital estate equally between the husband and wife. The husband’s attorney filed a motion to strike the wife’s pretrial statement. He argued that he would be prejudiced by the plaintiff’s failure to confer with the plaintiff’s attorney before filing her pretrial statement. The family court struck the plaintiff’s pretrial statement. The Court ruled that the wife made a fair and reasonable division of the marital assets considering the duration of marriage, and the taxes. The Court’s division of the marital assets concerning the house, bank account, and other fees was sufficient. Based on the facts presented in these cases, the potential for judge changes in family court proceedings is present. Whether the judge change is based on concerns for impartiality, disabilities, or the appearance of justice in the courtroom, litigants and their attorneys are aware of their options for obtaining a change of judge.
