Disqualifying Judges
September 2007
California litigants are allowed to disqualify judges from presiding over their cases both as a matter of right or peremptorily and on a showing of cause, even though exercising such rights may be disruptive or abused.
General Credit
1. The rules regarding disqualification of judges on a peremptory basis are substantially the same in civil and criminal cases. True False
2. To disqualify a judge under Code of Civil Procedure § 170.6, in addition to an allegation that the judge is “prejudiced against the party (or his or her attorney) or the interest of the party (or his or her attorney) so that affiant cannot or believes that he or she cannot have a fair and impartial trial or hearing before the judge,” the specific reasons setting forth a factual basis for the allegation must also be alleged. True False
3. If it is shown that a peremptory challenge was filed because the judge is a member of a cognizable group, then the challenge is disallowed. True False
4. There are four primary exceptions to the rule that a § 170.6 challenge will be timely so long as it is filed at any time prior to the start of the hearing towards which it is directed: (1) The Master Calendar exception; (2) The 10 day/5 day exception; (3) The All Purpose Assignment exception; and (4) The Ruling on the Merits exception. True False
5. When counsel is relieved and new counsel is substituted-in, the periods for filing a timely peremptory affidavit are reset. True False
6. Each defendant jointly charged in a single accusatory pleading has the automatic right to exercise a peremptory challenge under § 170.6. True False
7. Rulings on the merits which will bar the filing of a § 170.6 peremptory challenge in criminal cases include motions to set aside an information under Penal Code § 995, and rulings on a demurrer. True False
8. A ruling on a motion to suppress evidence under the Fourth Amendment is considered a ruling on the merits which will bar the filing of a peremptory challenge under ruling § 170.6. True False
9. The appointment of a conservator by a judge is a ruling on the merits which will bar a § 170.6 peremptory challenge. True False
10. Rulings on the merits which will bar the filing of a § 170.6 peremptory challenge in civil cases include a ruling on a motion for summary judgment and a ruling on a TRO. True False
11. A challenge to remove a judge from a case under Code of Civil Procedure § 170.1 must be filed “at the earliest practicable opportunity after discovery of the disqualifying facts.” True False
12. The § 170.1 challenge must be in a form to clearly give notice to the judge that a challenge for cause is being made to start the judge’s 10 day period to respond. True False
13. If a party does not have time to prepare a written formal motion it is sufficient that the party orally request that the judge disqualify herself under § 170.1, so long as the grounds are specifically articulated. True False
14. Because a party may not have all the facts needed when the § 170.1 challenge for cause is filed, the challenge can be based on opinion and conclusion and the party is allowed to allege hearsay in its challenge. True False
15. Since a party can file a peremptory challenge to disqualify a judge under § 170.6, it is not allowed to allege as grounds for a challenge for cause under § 170.1 that the judge is actually biased against a party or that a person might reasonably entertain a doubt regarding the judge’s ability to be fair. True False
16. The party seeking disqualification of a judge for cause under § 170.1 has the burden of proof. True False
17. If a judge does not strike the disqualification statement supporting the § 170.1 challenge or file a verified answer within 10 days from when the challenge was served, the judge is deemed to be disqualified. True False
18. To provide appellate courts guidance, a strike order in response to a § 170.1 challenge will often include an alternative answer. True False
19. After a verified answer is filed to a challenge under § 170.1, the matter must be referred to another judge for determination. True False
20. In seeking appellate review of the denial or granting of a peremptory challenge under § 170.6, the aggrieved party can either file a writ petition or pursue the matter on appeal. True False
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