Judicial Disqualification & Recusal in California
In most American jurisdictions a judge can only be disqualified “for cause.” This was also the rule in California prior to 1982; in that year, however, that state’s legislature adopted a detailed statutory framework for determining whether a judge should be disqualified in a particular situation. Pursuant to current California law, two methods exist for seeking to disqualify a judge. A party may either move to disqualify the judge for cause pursuant to Cal. Civ. Proc. §§ 170.1 through 170.5, or he may file a peremptory challenge in accordance with Cal. Civ. Proc. §170.6.
Cal. Civ. Proc. §170.6 affords to California litigants the “extraordinary” and “virtually unfettered” right to disqualify a judge, arbitrator, or referee for bias – in both civil and criminal cases – without having to establish that the judge or quasi-judicial officer is actually biased. A party who wishes to challenge a judge under §170.6 must allege that the judge is biased, but that party is not required to provide any factual basis for her bias claim, or to prove that her challenge was filed in good faith. For his part, the challenged judge cannot contradict the moving party’s challenge. As long as the peremptory challenge is filed in a timely and procedurally proper manner, the judge immediately loses jurisdiction, and any action he may take in the matter thereafter may be deemed to be “void.” There has been considerable case law in California, however, as to precisely what constitutes a “timely” peremptory challenge.
As for the “for cause” aspects of California’s statutory judicial disqualification framework, sections 170.1 through 170.5 mirror the primary federal judicial disqualification statute (28 U.S.C. § 455), but differ from that statute in several ways. For example, whereas the 1974 amendments to § 455 were intended to eliminate the “duty to sit” rule, the very first provision of California’s judicial disqualification framework [C.C.P. § 170] decrees that “a judge has the duty to decide any proceeding in which he or she is not disqualified.”
On occasion, statutes other than C.C.P. §§ 170.1 through 170.5 may have applicability to the issue of whether a California judge or quasi-judge should be disqualified from presiding over a matter. For example, § 303 (7060) of California’s Probate Code deals with the subject of disqualification of probate judges. California also has a constitutional provision, Cal. Const., art. 6, § 18, which provides for disqualification of judges who have either been indicted or recommended for removal or retirement by the Commission on Judicial Performance.
1. For guidance in making a motion for a peremptory challenge in California and filing a declaration in support of that challenge click here
2. Fora brief self-study article on Judicial Disqualification in California click here.
3. To review the California Judge’s Benchguide (2010) section on “Disqualification of Judge” click here
4. For a comprehensive overview of recusal and disqualification law in California which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges, §§ 27.4 and 28.6. To locate libraries in your neighborhood that carry this book click here