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How to make a motion to recuse a judge in Nevada

Posted by Neil Shouse | Oct 21, 2018 | 0 Comments

Parties to a civil or criminal case in Nevada state court may be able to recuse (remove) the judge from their case on either of the following four grounds:

  1. the judge has actual bias or prejudice for or against one of the parties,
  2. the judge is a party to or is interested in the case,
  3. the judge is related to one of the parties or their attorneys within the third degree, or
  4. the judge served as legal counsel for one of the parties in the case before the court

Judges may disqualify themselves from a case due to actual or implied bias. Otherwise, the procedures for recusing a judge depend on whether the judge is a trial/lower-level judge or an appellate court judge:

Recusing District, Justice, or Municipal Court judges in Nevada

A party to the case would file an affidavit with the court explaining why the judge should be recused. If the party has an attorney, that attorney should attach to the affidavit a certificate that the affidavit is filed in good faith and not for the purposes of delaying the case.

In general, the deadline for filing this affidavit for recusal is:

  • Not less than 20 days before the case's trial or preliminary hearing; or
  • Not less than 3 days before a pretrial hearing

Note that a copy of this affidavit must be served on the judge sought to be recused. (It is acceptable to leave the affidavit at the judge's chambers with an employee.)

The judge may challenge the affidavit by filing a written answer with the clerk of the court no later than 5 judicial days after the affidavit was filed. Whether the judge will be disqualified will then be decided by another judge who both parties agree on, or else, by the presiding judge of the court.

In Las Vegas, the district court is the Eighth Judicial District Court, which serves all of Clark County. The justice court is Las Vegas Justice Court. And the municipal court is Las Vegas Municipal Court.

Recusing Court of Appeals judges or Supreme Court justices in Nevada

A party to the case would file an affidavit with the court explaining why the judge or justice should be recused. The Nevada Supreme Court would then hold a hearing on the matter. If the affidavit concerns recusing a justice of the Supreme Court, then that justice would obviously not have a vote in whether he/she gets recused.

If a Supreme Court justice gets recused, a judge from the Nevada Court of Appeals would substitute in. If a Court of Appeals judge gets recused, then a district court judge would substitute it.

Note that judges and justices are never permitted to punish or retaliate against people for filing an affidavit for recusal.

Learn more about our Las Vegas criminal defense attorneys.


Legal References:

NRS 1.225  Grounds and procedure for disqualifying Supreme Court justices and judges of the Court of Appeals.

      1.  A justice of the Supreme Court or a judge of the Court of Appeals shall not act as such in an action or proceeding when the justice or the judge entertains actual bias or prejudice for or against one of the parties to the action.

      2.  A justice of the Supreme Court or a judge of the Court of Appeals shall not act as such in an action or proceeding when implied bias exists in any of the following respects:

      (a) When the justice or the judge is a party to or interested in the action or proceeding.

      (b) When the justice or the judge is related to either party by consanguinity or affinity within the third degree.

      (c) When the justice or the judge has been attorney or counsel for either of the parties in the particular action or proceeding before the court.

      (d) When the justice or the judge is related to an attorney or counselor for either of the parties by consanguinity or affinity within the third degree.

      3.  A justice of the Supreme Court or a judge of the Court of Appeals, upon his or her own motion, may disqualify himself or herself from acting in any matter upon the ground of actual or implied bias.

      4.  Any party to an action or proceeding seeking to disqualify a justice of the Supreme Court or a judge of the Court of Appeals for actual or implied bias shall file a charge in writing, specifying the facts upon which such disqualification is sought. Hearing on such charge shall be had before the other justices of the Supreme Court or, if the charge concerns a judge of the Court of Appeals, the justices of the Supreme Court.

      5.  Upon the disqualification of:

      (a) A justice of the Supreme Court pursuant to this section, a judge of the Court of Appeals or a district judge shall be designated to sit in place of the justice as provided in Section 4 of Article 6 of the Constitution of the State of Nevada.

      (b) A judge of the Court of Appeals pursuant to this section, a district judge shall be designated to sit in place of the judge as provided in Section 4 of Article 6 of the Nevada Constitution.

      6.  No person shall be punished for contempt for making, filing or presenting a charge for disqualification pursuant to subsection 4.


NRS 1.230  Grounds for disqualifying judges other than Supreme Court justices or judges of the Court of Appeals.

      1.  A judge shall not act as such in an action or proceeding when the judge entertains actual bias or prejudice for or against one of the parties to the action.

      2.  A judge shall not act as such in an action or proceeding when implied bias exists in any of the following respects:

      (a) When the judge is a party to or interested in the action or proceeding.

      (b) When the judge is related to either party by consanguinity or affinity within the third degree.

      (c) When the judge has been attorney or counsel for either of the parties in the particular action or proceeding before the court.

      (d) When the judge is related to an attorney or counselor for either of the parties by consanguinity or affinity within the third degree. This paragraph does not apply to the presentation of ex parte or uncontested matters, except in fixing fees for an attorney so related to the judge.

      3.  A judge, upon the judge's own motion, may disqualify himself or herself from acting in any matter upon the ground of actual or implied bias.

      4.  A judge or court shall not punish for contempt any person who proceeds under the provisions of this chapter for a change of judge in a case.

      5.  This section does not apply to the arrangement of the calendar or the regulation of the order of business.


NRS 1.235  Procedure for disqualifying judges other than Supreme Court justices or judges of the Court of Appeals.

      1.  Any party to an action or proceeding pending in any court other than the Supreme Court or the Court of Appeals, who seeks to disqualify a judge for actual or implied bias or prejudice must file an affidavit specifying the facts upon which the disqualification is sought. The affidavit of a party represented by an attorney must be accompanied by a certificate of the attorney of record that the affidavit is filed in good faith and not interposed for delay. Except as otherwise provided in subsections 2 and 3, the affidavit must be filed:

      (a) Not less than 20 days before the date set for trial or hearing of the case; or

      (b) Not less than 3 days before the date set for the hearing of any pretrial matter.

      2.  Except as otherwise provided in this subsection and subsection 3, if a case is not assigned to a judge before the time required under subsection 1 for filing the affidavit, the affidavit must be filed:

      (a) Within 10 days after the party or the party's attorney is notified that the case has been assigned to a judge;

      (b) Before the hearing of any pretrial matter; or

      (c) Before the jury is empaneled, evidence taken or any ruling made in the trial or hearing,

--> whichever occurs first. If the facts upon which disqualification of the judge is sought are not known to the party before the party is notified of the assignment of the judge or before any pretrial hearing is held, the affidavit may be filed not later than the commencement of the trial or hearing of the case.

      3.  If a case is reassigned to a new judge and the time for filing the affidavit under subsection 1 and paragraph (a) of subsection 2 has expired, the parties have 10 days after notice of the new assignment within which to file the affidavit, and the trial or hearing of the case must be rescheduled for a date after the expiration of the 10-day period unless the parties stipulate to an earlier date.

      4.  At the time the affidavit is filed, a copy must be served upon the judge sought to be disqualified. Service must be made by delivering the copy to the judge personally or by leaving it at the judge's chambers with some person of suitable age and discretion employed therein.

      5.  Except as otherwise provided in subsection 6, the judge against whom an affidavit alleging bias or prejudice is filed shall proceed no further with the matter and shall:

      (a) If the judge is a district judge, immediately transfer the case to another department of the court, if there is more than one department of the court in the district, or request the judge of another district court to preside at the trial or hearing of the matter;

      (b) If the judge is a justice of the peace, immediately arrange for another justice of the peace to preside at the trial or hearing of the matter as provided pursuant to NRS 4.032, 4.340 or 4.345, as applicable; or

      (c) If the judge is a municipal judge, immediately arrange for another municipal judge to preside at the trial or hearing of the matter as provided pursuant to NRS 5.023 or 5.024, as applicable.

      6.  A judge may challenge an affidavit alleging bias or prejudice by filing a written answer with the clerk of the court within 5 judicial days after the affidavit is filed, admitting or denying any or all of the allegations contained in the affidavit and setting forth any additional facts which bear on the question of the judge's disqualification. The question of the judge's disqualification must thereupon be heard and determined by another judge agreed upon by the parties or, if they are unable to agree, by a judge appointed:

      (a) If the judge is a district judge, by the presiding judge of the judicial district in judicial districts having more than one judge, or if the presiding judge of the judicial district is sought to be disqualified, by the judge having the greatest number of years of service;

      (b) If the judge is a justice of the peace, by the presiding judge of the justice court in justice courts having more than one justice of the peace, or if the presiding judge is sought to be disqualified, by the justice of the peace having the greatest number of years of service;

      (c) If the judge is a municipal judge, by the presiding judge of the municipal court in municipal courts having more than one municipal judge, or if the presiding judge is sought to be disqualified, by the municipal judge having the greatest number of years of service; or

      (d) If there is no presiding judge, by the Supreme Court.


About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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