Disqualification of Judges

• Jurisdiction: California,United States
• Author: Michael G. Loeffler
• Publication year: 2019
• Citation: Vol. 41 No. 4

Disqualification of Judges

Michael G. Loeffler

Mike Loeffler has practiced family law since 1975. He was a Mental Health Hearing Officer for fifteen years. He was the head of the Area VI Developmental Disabilities Board for ten years. He graduated with highest honors from the University of California, Davis, where he was a member of Phi Beta Kappa, and from the University of The Pacific, McGeorge School of Law, where he attained membership in The Traynor Society. Heisalsoa second degree black belt in aikido and former marath on runner. He may be reached at mgloeffler@gmail.com.

In a recent Family Law News article¹, I discussed the procedure to disqualify judges and was surprised at the reaction to the article. Attorneys (family law and otherwise) from around the state contacted me. Most did not know that this procedure existed before reading the article.

Through these contacts, I have been able to see the disqualification process in action around California. It has been fascinating. Some superior court clerks were even unfamiliar with the process.

In one interesting case², an attorney filed a "Verified Statement in Support of Motion to Disqualify Pursuant to Code of Civil Procedure section 170.1 or Alternatively Sua Sponte Recusal," alleging that the judge had shown implicit bias toward the attorney and her client. The attorney also submitted a Request for Order.

The court denied the Request for Order on the basis that the attorney had not followed the correct procedure: filing and service of a verified statement for disqualification under Code of Civil Procedure section 170.3(c)(1). The verified statement should not have been filed in support of a motion.

This error illustrates an important point. The disqualification procedure is initiated by a verified statement, not a motion. This concept is unusual, especially for family law practitioners.

The attorney then filed a notice of motion on the same issue. The clerk's office assigned a hearing date.

The clerk also did not understand the process and should not have assigned the hearing date. As the court stated, "Once the verified statement is filed and the judge is served, the judge has 10 days to file a response or to strike the statement. No hearing date is assigned."

The court issued an order (a) striking the verified statement and (b) vacating the hearing date.

In discussing the disqualification procedure in these types of cases generally with several attorneys around the state, it became clear to me after I published my first article that this power - the power to strike the statement of disqualification at the very outset - is one powerful approach that judges may use to stop the procedure at the very beginning.

For that reason, before attorneys decide to submit the verified statement, we need to carefully consider whether the court will have grounds to strike it. If so, then the attorney should not file it.

One particular basis for striking of a verified statement is that it is untimely. "The statement shall be presented at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification."³

In this particular case, the court determined that the attorney did not file her statement of disqualification until almost 5 months from the time that the attorney expressed the belief that the court could not be impartial.

In a second case, a party acting In Pro Per submitted a verified statement against a visiting judge. The party did everything correctly from a procedural standpoint. The...