Attorney Explains How to Exercise a Peremptory Challenge Against a Judge

California law provides that no trial judge, commissioner, or referee may try any civil or criminal case or hear any matter involving a contested issue of law or fact if it is established that the judicial officer is prejudiced against a party or attorney or the interest of a party or attorney. The authority for this proposition can be found in CCP §170.6(a)(1). A party or attorney may establish this prejudice by oral or written motion without notice. The motion must be supported by a declaration under penalty of perjury, an affidavit, or an oral statement under oath, stating that the judicial officer to whom the case is assigned is prejudiced against the party, accused in a criminal case or attorney representing the accused who therefore cannot receive a fair trial or hearing.

When in Court, a peremptory challenge may be made without any notice whatsoever and may be either in oral or written form. An oral motion must be accompanied by a statement under oath that the judicial officer to whom the case is assigned is prejudiced against the party or attorney and that the party or attorney cannot receive a fair trial or hearing. A written motion must be supported by a declaration under penalty of perjury or an affidavit, also stating that the judicial officer to whom the case is assigned is prejudiced and the party or attorney cannot receive a fair trial or hearing.  Most Courts provide pre-printed forms to allow a party quick access to a challenge.

Under the current state of the law in California any superior court judge, commissioner, or referee is subject to a peremptory challenge. This includes court-appointed referees even though they only submit recommended rulings to appointing courts, rather than making rulings.

Once a challenge has been filed, the judge must withdraw from the case unless the challenge is defective. After a challenge has been made, a judge has no jurisdiction to hold further proceedings except to inquire into the timeliness of the challenge.  No specific reasons for the belief that the Judge is prejudiced against the party is necessary.  In a criminal case the challenge can be made by either the attorney or the defendant in the case.

One Response to Attorney Explains How to Exercise a Peremptory Challenge Against a Judge

  1. Rory Steward says:

    What about peremptory challenge of a commissioner as opposed to a judge. That should be automatic. But is there a timeline?

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