How to Reopen a Case After a Judge Disqualified It

A judge must disqualify himself if he has a conflict of interest with any party to a lawsuit.

When a judge disqualifies a case, he is removing himself from the case due to a conflict of interest or a personal relationship with one of the parties to the case. Judges are required to disqualify themselves from cases evincing even the slightest hint if impropriety. When a judge disqualifies himself in a case, the case is not dismissed or "closed," but transferred to another judge with no conflicts with any party to the case. The parties will receive notice of the disqualification and information pertaining to whom the new judge will be and whether the date and time of the upcoming proceedings have changed.

Instructions

1. Assess the relationships in the case to determine if a conflict of interest exists. If grounds exist for disqualification, the judge has a duty to identify those grounds and move to recuse himself from the case. Grounds for disqualification include the existence of personal relationships with any of the parties in the case or if the judge has a financial stake in the outcome of the case. These grounds suggest the judge cannot be impartial to the parties. Another common reason for disqualification includes a situation where the judge represented one of the parties in the past in his capacity as an attorney. (Reference 1).

2. Draft a motion to disqualify the judge. A disqualification motion must set forth the legal reasons why the judge is not fit to adjudicate the case. The moving party (party making the motion) must be as specific as possible in the motion. If the judge has a financial stake in the outcome of the litigation or is a relative or friend of one of the parties, these details should be explained in the motion. (See Sample Motion, Reference 2)

3. File the motion with the clerk of the court. Judges have the option to disqualify themselves on their own motion if they so choose. If the judge is not aware of or does not acknowledge the conflict, the parties must submit the motion to the clerk of court where the judge sits. The motion must include an affidavit declaring the facts set forth in the document are true under penalty of perjury. A copy of the motion must be served upon the other parties in the case and each party will be offered the opportunity to oppose the motion. (References 1, 3)

4. Review the judge's consent to disqualification or opposition to disqualification. States give judges a specified amount of time to respond to the motion by either consenting to be disqualified or challenging the motion. If the disqualification is in question, a hearing will be held and another judge will oversee the judge's and parties' arguments for or against disqualification. At the conclusion of the hearing, the neutral judge will determine whether a conflict exists. If the original judge is found to be in conflict with the parties, the new judge will take over the case. (Reference 1)

5. Await notification of the new trial time and location. Each judge has his own docket schedule. If the new case is awarded to a new neutral judge, the case must be added to his already busy schedule. There will likely be a new date and time for the trial and it will likely be in a different courtroom within the same courthouse. The clerk will alert all the parties with new trial information.

References

• Onecle; California Code of Civil Procedure; Section 170.3; California Legislature; January 2011
• Turner.com; Motion for Disqualification of Judge; Rick Jancha; November 2009
• Randazza.com; Opposition to Motion for Disqualification; Larry Giles; June 2007

Resources

• Onecle; Disqualification of Judges; California Legislature; 2011