Want a different judge to hear your California traffic ticket or criminal case? Afraid to let a Commissioner hear your misdemeanor case? There is something you can do to get a different Judge to hear your case.
| Many states have similar laws to California on disqualifying judges. In California, the Code of Civil Procedures provides a method of disqualification of a judge or commissioner that may be used in civil cases, criminal cases, and even traffic court. |
Yes, you can disqualify a biased judge or commissioner if you do it early.
A quick and easy disqualification can be made by filling out a written form and filing it. However, the court must also consider such a request as an oral request or motion made in open court. If done correctly, disqualification is automatic, effective and immediate.
Criminal Defense Lawyers call it “Point Sixing” a judge. It can be a useful defense tool. Here are the details.California Code of Civil Procedure section 170.6 provides that a judge must disqualify him or herself upon a timely motion by any party or attorney for qualification, so long as there is a sworn statement under oath that the party or attorney believes that that the judge is biased against that party or attorney. A challenge to a judge under section 170.6 is called a “pre-emptory challenge”. Sec. 170.6 provides for judicial disqualification without any evidence of actual bias.
Once a Sec. 170.6 motion has been filed, with a statement under penalty of perjury or an oral statement under oath indicating that the judge is so biased “that the moving party or her attorney believes she cannot have a fair and impartial trial or hearing”, the judge ordinarily has no choice but to disqualify himself.
The peremptory challenge right is “automatic”. A good faith belief in the judge’s bias is alone sufficient to insure that the challenged judge will no longer be permitted to sit.
Some California Appellate courts have ruled that when a party properly makes a proper motion under Code of Civil Procedure sec. 170.6, the judge immediately loses jurisdiction and any action he takes on the case afterwards is void.
A motion to disqualify a judge under Sec. 170.6 must be made in a “timely fashion”, which generally means at the first hearing where a judge has been assigned to a case. In other words, the motion must be made at the first opportunity. You cannot decide to make the motion after you have allowed a judge to hold hearings in a case. You may only use one 170.6 challenge per case.
To make a CCP 170.6 motion to disqualify a judge, you should use the standardized local judicial counsel form. Most courts will post a Local CCP 170.6 form (such as this one for LA County) on the courts web site in a “pdf” format. It is best to fill out the form before going to court. Once there, if you decide to disqualify the judge, when your case is called, tell the judge you have a motion to file and hand the form to the bailiff or court clerk, who will show it to the judge.
If you cannot get or find a form for the court, you can make the motion orally, or in a simple letter which declares under penalty of perjury that you have a belief the judge is biased. Review the sample above for help.
Don’t feel bad or guilty about disqualifying a judge. It happens everyday in every court, to every judge. If you need to change judges to protect your interests, do it.
One more tip: If you are charged with a misdemeanor in traffic court, the court must get your permission to have a Commissioner, instead of a real judge, decide your case. Commissioners are just court employees, not real judges.
If you do not want a “Commissioner” or Judge Pro Tem to hear your case, just inform the court in writing or orally at the first moment they call your case in court that you do not “stipulate” (or agree) to have a Commissioner hear your case. The court should then transfer your case to a real judge who has been appointed by the Governor or Elected by the Voters.