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When to Request Judicial Recusal?

By William Vogeler, Esq. | Last updated on

If your judge wants to hold you in contempt, you might want to request judicial recusal.

But if you haven't made the request before such an ominous turn of events, you have probably waited too long. Trying to toss a judge off your case as a last ditch maneuver can be like tossing a grenade: if you don't throw it far enough ... well, yeah.

Judges generally have discretion whether to recuse themselves from cases. So unless you can show they have an unfair bias early on, you are usually going to get what's coming to you.

Judicial Discretion

David Daleiden, for example, is trying to disqualify the judge in an anti-abortion case. Judge William Orrick barred Daleiden from releasing videos recorded at an association of abortion providers, and the judge said he will consider holding Daleiden in contempt for violating his orders.

"The public is well aware that abortion is a topic on which many people, including judges, are apt to have very strong feelings they would find difficult to set aside in order to be impartial," Daleiden's attorneys said in their request.

The attorneys say the judge should be disqualified because he has "a longstanding relationship" with an organization tied to Planned Parenthood. They said the judge's wife also "liked" Facebook posts that criticized Daleiden.

Under 28 U.S.C. Section 455, Orrick will decide whether he can be impartial. The statute says a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Peremptory Challenge

Federal and state laws generally leave the question of judicial recusal up to the judge who is challenged. California, however, has a statute that allows litigants to file a peremptory challenge.

California Code of Civil Procedure Section 170.6 offers a motion that, if timely and properly filed, will automatically disqualify a judge. The moving party need only sign an affidavit attesting that "he or she cannot have a fair and impartial trial or hearing before the judge."

Otherwise, a judge may only be disqualified for cause in most jurisdictions.

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