Disqualifying a Judge: An Early Strategic Move

Sacramento Family Attorney-May 1, 2020

Too often, individuals are so focused on initiating or responding to a family law lawsuit that they overlook an easy way to obtain an early tactical advantage.  Many do not understand that family law judges are empowered with vast discretion on various issues.  This means that although each judge is called upon to apply the same set of laws, each is free to interpret the significance of the facts of a given case in the way he or she believes is best.  This creates a situation where judges’ personal and professional experiences may create biases and preferences which absolutely impact the outcome of the cases assigned to them.

California Code of Civil Procedure section 170.6 provides that a judge may be disqualified from a case if he or she is prejudiced against a party, an attorney, or the interest of the party or the attorney.  This is called a peremptory challenge.  Most commonly, disqualification of a judge occurs when the objecting party or attorney files a simple one-page declaration, which is signed under penalty of perjury.  The declaration states that he or she believes the judge to be prejudiced against the party, his/her attorney, or the interest of either the party or the attorney, such that a fair and impartial hearing or trial cannot take place.  

The process of disqualifying a judge under C.C.P. 170.6 is simple.  There is no inquiry into whether or not the assigned judge is actually prejudiced against a party, their attorney, or the interests of either.  In fact, it is improper for a judicial officer to inquire about why a party or an attorney filed a peremptory challenge.  To disqualify a judge, it is sufficient for a party or attorney to simply allege that the judge is prejudiced.

However, one’s ability to exercise a peremptory challenge is not unlimited.  It is important to note that each party is afforded just one peremptory challenge.  It is also critical to understand that there is a very short window of opportunity to exercise a peremptory challenge.  Once that window is closed, it cannot be reopened.  For courts which have judicial officers assigned to cases for “all purposes,” a peremptory challenge must be made within fifteen (15) days of the notice of the all purpose assignment, or within fifteen (15) days of the appearance if the party has not yet appeared in the case (which can happen as soon as he or she has something filed in the case on their behalf).  The timing requirement is different for non all purpose case assignments.  

It is critical that a peremptory challenge is made in a timely manner.  If the deadline is missed, not only will the challenge be denied and the party will be stuck with that particular judge, but that judge will know that you unsuccessfully tried to have him or her disqualified. 

It is vital that parties work with experienced attorneys who know the biases and idiosyncrasies of local judges.  Doing so will facilitate an important analysis and discussion regarding whether a particular judge would be favorable or critical of a party’s facts and requests.  Sadly, too frequently parties find out the hard way that the assigned judge was the worst possible judge for their case and that it is too late to do anything about.  Be proactive.  Be strategic.  Discuss this potential situation with your attorney in advance and proceed accordingly.  Properly exercising a peremptory challenge does not necessarily provide a party with the ability to secure the best possible judge for their case, but it can guarantee that they will not be stuck with the worst possible judge for their case. 

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