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Code of Civil Procedure 170.1 CCP is the California statute that says a judge can be disqualified, or removed, from presiding over a civil lawsuit or a criminal trial in certain situations.In particular, the code section states:
“(a) A judge shall be disqualified if any one or more of the following are true:
(1) (A) The judge has personal knowledge of disputed evidentiary facts concerning the proceeding….
(2) (A) The judge served as a lawyer in the proceeding…
(3) (A) The judge has a financial interest in the subject matter in a proceeding or in a party to the proceeding…”
Please note that other reasons do exist and the reasons within the statute are often referred to as “for cause” reasons to disqualify a judge.
“Disqualification” means that a judge is removed from a court case and an alternate judge gets assigned to the proceedings.
If one of the reasons within CCP 170.1 exists, then a party attempts to actually disqualify a judge by:
Please note that under the Due Process Clause of the Constitution, everyone is entitled to an impartial judiciary in a criminal matter.
Challenges “for cause” are different than peremptory challenges of a judge, per Code of Civil Procedure 170.6. A “peremptory” challenge means that a party can try to disqualify a judge on the basis that he/she is biased.
In addition to challenges for cause and peremptory challenges, a judge can be removed in California based upon:
Our California criminal defense attorneys will highlight the following in this article:
California Code of Civil Procedure 170.1 CCP states that a party to a civil or criminal case can try to remove a judge “for cause.” This means that the judge can be removed, or disqualified, from a case for a reason specifically listed within the statute.
Under CCP 1701.1, the “for cause” reasons as to when a judge can be disqualified are when any one or more of the following are true:
In addition, a judge can remove himself from a case, “for cause,” if for any reason:
If one of the reasons within CCP 170.1 exists, then a party can attempt to disqualify a judge by:
A motion to recuse is a legal motion filed in court that says a judge should be disqualified, or removed, from a legal case for a reason listed within CCP 170.1.
The motion can be brought by either a prosecutor or a defense attorney. And, a motion to recuse can be filed in either a civil suit or in a criminal trial.
Please note that under the Due Process Clause of the Constitution, everyone is entitled to an impartial judiciary in a criminal case.
When filing a motion to recuse, the document must state the specific grounds for which the judge should be disqualified.
If the motion is granted, the judge is removed from the case. If the MTR is denied, the judge remains on the case.
California law states that a challenge for cause must be filed at the earliest practicable opportunity after a party discovers the grounds for disqualification. The determination as to what is “the earliest practicable opportunity” is largely based on the facts of a given case.
Past California court cases have said that a motion to recuse was timely filed when it was brought:
Challenges “for cause” and different than peremptory challenges of a judge. A “peremptory” challenge means that a party can file a motion to recuse and try to remove a judge on the basis that he/she is biased.13
When bringing a peremptory challenge, it is not necessary for the party to show that the judge is actually biased. It is also not necessary for the party to provide any factual basis for his claim.14
The party just has to state that he believes the judge is prejudiced against him and the party does not believe he can have a fair and impartial trial.15
Once a peremptory challenge is made, the judge cannot oppose it. As long as the challenge is made in a timely manner, the judge immediately loses jurisdiction over the case. This means any action that he makes in the case shall be considered “void.”16
In addition to challenges for cause and peremptory challenges, a judge can be removed in California based upon some statutes and the State Constitution.
For example, California Probate Code 7060 allows for the disqualification of probate judges in some circumstances.
Further, the California Constitution provides for the disqualification of judges who have been either indicted or recommended for removal by the Commission on Judicial Performance.
For questions on motions to recuse a judge in Colorado, please see our article on How to File a “Motion to Recuse a Judge” in Colorado. For questions about seeking to recuse a prosecutor, please see our article on Can You Request a Different District Attorney?.
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