Judge Disqualification Rules in Action

• Publication year: 2007
• Pages: 20

Utah Bar Journal Volume 20.

Vol. 20, No. 3, 20. Judge Disqualification Rules in Action

Utah Bar Journal
Vol. 20, No. 3
April 2007

Judge Disqualification Rules in Action

Judge Disqualification Rules in Action

by Judge Robert K. Hilder

In the Third District, the associate presiding judge acts as reviewing judge for most Rule 63(b), Utah Rules of Civil Procedure, and Rule 29, Utah Rules of Criminal Procedure motions to disqualify the assigned judge.1 After more than one year of direct exposure to the rules in action, I am persuaded that ignorance of the rules' substance and procedural requirements is the norm, both for judges and lawyers. The Third District has thirty-two and one-half judicial officers (we presently share one of our five commissioners with the Third District Juvenile Court). I have now reviewed more than thirty motions to disqualify (all but two in civil cases), involving nineteen of those officers

The experience has been often frustrating, sometimes humorous, and always revelatory. My purpose in this article is to draw from my wholly unscientific sample, and the research it has impelled, to consider the rules in practice and give some suggestions to both lawyers and judges who are faced with disqualification issues. Obviously the suggestions result from problems I have seen in both the motions filed and judges' responses to those motions. This article is not intended to suggest that counsel and parties refrain from filing well-founded motions. The option to seek disqualification is a critical safeguard in the judicial system, and all judges support appropriate filings. I hope that this article will help counsel determine when a motion is valid, and assist judges (who each generally see very few such motions) in responding appropriately.

Utah does not provide each party a peremptory judge removal right. Except for the narrowly drawn Rule 63A option, which provides one stipulated change of judge as of right, counsel and parties are usually wedded to their judge for the term of the litigation, absent valid grounds for disqualification under the rules, or in some districts the automatic effect of assignment rotation, and of course changes caused by retirement or other administrative reassignment.

For Judges-

Do not engage regarding the motion. Do not request briefing, or set for argument before you determine legal sufficiency. Do not take the motion personally, even if it is patently personal and/or manifestly unfair. Everyone in your courtroom may stand in your presence and call you "You Honor," but that doesn't mean they actually like or respect you, and they don't have to, and you do not have to argue the merits of their position. If you do engage, you have probably made the best argument for disqualification.

The rules are explicit on this point: "The judge against whom the motion and affidavit are directed shall, without further hearing, enter an order granting the motion or certifying the motion and affidavit to the reviewing judge." Utah R. Civ. P. 63(b)(2) (emphasis added). Despite this clear directive, I have seen judges request briefing, set argument on the motion, and even call upon counsel present in the courtroom to essentially testify to the judge's impartiality or the appropriateness of his or her conduct in a specific instance. When the judge becomes enmeshed in the proceeding in this fashion the process itself may create hostile and biased reactions. At the very least, in the

midst of such proceedings it becomes much more difficult to avoid an appearance of partiality sufficient to require disqualification.

- Recuse, or certify the motion. Say no more. The case law is clear that a judge's comments included in his or her certification risks improperly influencing the determination by the reviewing...