HOW TO DISQUALIFY A JUDGE ON YOUR CASE

BY PARIENTE LAW FIRM, P.C. - August 27, 2018

Our judicial system has been carefully constructed – and continues to be fine-tuned quite frequently in an ongoing effort to make sure that all cases are handled with the impartial approach that is necessary to ensure fairness of judgment. Naturally, a crucial component of preserving this fairness rests directly on the shoulders of the judge who presides over each case.

While in the majority of cases, there is no conflicting factor that would render the presiding judge unsuitable for that case, there is unavoidably also an occasional and unintentional overlap of interests that if left unremedied, could result in a questionable outcome.

Fortunately, there are solutions to situations of this nature and it is always in the best interest of anyone going through legal proceedings to understand what their options are if they suspect or know that a conflict of interest is present. For this reason, we wanted to take a closer look at how the judicial system handles these conflicts, as well as address some of the most common questions that arise when this does occur.

WHAT IS THE DIFFERENCE BETWEEN A JUDICIAL RECUSAL AND A JUDICIAL DISQUALIFICATION?

While the outcome to either of these is largely the same in the end – both result in the removal of the judge in question from a case with potential or proven conflict of interest – there is a recognition of a slight distinction between the two terms. Typically, a recusal is what takes place when a judge recognizes and then voluntarily chooses to remove themselves from presiding over a case because they are aware of a conflict of interest.  Some of the most common examples of a conflict of interest that would lead an assigned judge to recuse themselves voluntarily include situations in which:

● They have a familial relationship with one of the attorneys involved in the case.

● They have a possible financial interest in the result of the case.● They have either a personal connection to one of the involved parties or have some personal knowledge regarding the facts of the case. Disqualification more often refers to the removal of a judge who has failed to recuse themselves in spite of a reasonable and factual basis that suggests they may not be impartial in their judgment of a particular case.

It’s also worth pointing out that neither of these actions is something that occurs automatically, leaving the initial decision to recuse themselves up to the discretion of the judge. When a judge fails to recuse themselves in spite of reasonable concerns about their ability to remain fair and impartial, the concerned party has the option to file a motion to disqualify them.

WHAT ARE THE GROUNDS FOR WHICH A JUDGE CAN BE DISQUALIFIED?

As detailed in NRS 1.230, the grounds for disqualification are laid out as follows:

● A judge shall not act as such in an action or proceeding when they entertain actual bias or prejudice that is for or against one of the parties to the action.

● A judge shall not act as such in an action or proceeding when an implied bias exists in the following ways – when they are a party to or interested in the action or proceeding when they are related to either involved party or related to any involved attorney or counselor, or when they have acted as the attorney or counsel for either of the relevant parties in the action or proceeding in question.

WHAT IS THE PROCEDURE FOR HAVING A JUDGE DISQUALIFIED FROM YOUR CASE?

In the event that there is a reasonable belief that the judge presiding over your case will not be able to do so with the impartiality that is necessary for the proceedings at hand, both the defense and the prosecution have the option to file an affidavit that details specifically the facts related to any actual or implied bias or prejudice that could be grounds for the disqualification of that judge. (NRS 1.235)

This affidavit must be accompanied by a certificate of the attorney of record stating that the affidavit has been filed in good faith and not interposed for delay. While there are some variations to this based on issues of timing, in general, this affidavit has to be filed not less than 20 days before the date set for the trial or hearing of the case, or not less than 3 days before the date that has been set for the hearing of any pretrial matter.

Once a motion to disqualify the judge in question has been filed, the judge will be served a copy of the affidavit. Following this, they have two options – either to transfer the case to another judge immediately or to file a written answer with the clerk. This written response must be filed within two days after the motion to disqualify was filed and should contain either the admission or denial of the allegations of a bias or conflict of interest, as well as any additional information they feel should be taken into consideration.

If they have chosen to contest the motion to disqualify them from the case, another judge will be presented with all relevant information related to the disqualification in question and they will decide the matter.

WHAT HAPPENS IF A JUDGE DECLINES TO RECUSE THEMSELVES?

In cases where a judge whose impartiality is in question and reasonable grounds exist for them to recuse themselves from a case, their failure to do so may result in disciplinary action, including possible suspension or disbarment. Additionally, the result of the case in question may need to be reviewed and in some cases, may lead to the ordering of a new trial.

If you have reason to believe that the judge presiding over your case is doing so in spite of a conflict of interest, you do have the right to pursue their disqualification from your case. Contact our office today to discuss your legal options with one of our experienced attorneys – we offer free case evaluations and will be happy to answer your questions.