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Originally Posted On: https://campolidefense.com/can-i-choose-my-judge-no-but/
Ask the expert attorney—
Q: I want the judge removed from my case, but how?
A: Removing a judge, also referred to as recusal, from a case can be a complex legal process, which varies by the jurisdiction and specific circumstances of your case. Generally, judges are expected to remain impartial and follow the law, so removing a judge is not a common or straightforward procedure. However, if you have a valid reason to request the removal of the judge from your case (explained in detail below) there are several courses of action you may consider. Since requesting the removal of a judge may have consequences for your case, especially if the request is improperly made or denied by the Court, it is crucial that you proceed with caution as advised by the attorney on your case.
- Understand the Grounds for Recusal: Before proceeding with a recusal request, make sure you have valid grounds to do so. Judges can be recused if they have a personal bias, conflict of interest, or other circumstances that might prevent them from being impartial.
Specifically, the Minnesota Rules of Civil Procedure provide that if a judge is disqualified by the Code of Judicial Canon, for demonstrating interest or bias in a proceeding, the judge may be properly removed by motion. Minn. R. Civ. P. 63.02, 63.03.
The Minnesota Code of Judicial Conduct, Canon 2, Rule 2.3 of the judicial code states “A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment, including but not limited to bias, prejudice, or harassment…” Minn. Code Judicial Conduct Rule 2.3 (B). This provision allows a judge to be removed if they have demonstrated any of the conduct above.
The authority to substitute a judge in criminal matters is delineated by the Minnesota Rules of Criminal Procedure, Rule 26.03 Subd. 14(3). This rule indicates that, “A judge must not preside at a trial or other proceeding if disqualified under the Code of Judicial Conduct,” as discussed above. Minn. R. Crim. P. 26.03 Subd. 14(3).
- File a Motion: Your attorney will need to prepare a written motion formally requesting the recusal of the judge from your case.
As mentioned above, the authority to file a motion to request the removal of a judge from a case from the Minnesota Rules of Civil Procedure, Rule 63.03. Once you have enough information regarding the judge’s improper conduct, through bias, prejudice, or harassment, prohibited by the MN Code of Judicial Conduct as indicated above, you must follow the procedure delineated in Rule 63.03.
The language of Rule 63.03 Notice to Remove states, “Any party or attorney may make and serve on the opposing party and file with the administrator a notice to remove. The notice shall be served and filed within ten days after the party receives notice of which judge or judicial officer is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.” Minn. R. Civ. P. 63.03.
In addition to complying with the provisions of Rule 63.03, the motion should include a comprehensive list of the reasons why you believe the judge should be recused. It is important to be specific and provide as much evidence as is possible to support your claims.
In criminal proceedings, Minn. R. Crim. P. 26.03 Subd. 14(3) indicates the procedure to remove a judge from proceedings, through notice and by hearing, as is similar to Rule 63.03 of the Minnesota Rules of Civil Procedure. The request to remove a judge under this rule must be heard and determined by the chief judge of the district court, or an assistance chief judge if the judge is implicated in the request. Subdivision 14(4) governs the notice to remove requirements under Rule 26.03, which differ slightly from civil matter (under the Minnesota Rules of Civil Procedure). Note that the procedural nuances between the civil and criminal rules are important to note-as following proper procedures can mean the difference between your motion being either granted or denied-so it is important to be properly advised as to which rules apply in your given case.
At the Law Office of Lauren Campoli, expert criminal defense attorney Lauren will look over all of the information in your case before advising you as to whether a motion to recuse the judge appointed to your case is proper. If the evidence available indicates a judge’s bias or impartiality, Lauren will work to remove that judge from the case.
When a recent client at the Law Office of Lauren Campoli found himself in a similar situation, where the judge’s impartiality was at issue, Lauren expertly analyzed all of the available information in the client’s case. Upon discovering a requisite showing of evidence which demonstrated the judge’s bias, criminal defense specialist Lauren advised our client of his options and used the evidence of the particular judge’s bias to craft an astute argument as to why the judge should be removed from the matter’s proceedings. Then, Lauren moved to have that judge recused from the client’s case.
Given the difficulty in having a judge successfully recused from your case, it is important to retain an expert who is comfortable in challenging the authority of judges and judicial officers when proper in a case and necessary in the interests of justice.
- Serve the Other Parties: Provide a copy of the motion to all other parties involved in the case. This ensures that everyone is aware of the recusal request and has an opportunity to respond.
Minn. R. Civ. P. 63.03 states, “Any party or attorney may make and serve on the opposing party and file with the administrator a notice to remove. The notice shall be served and filed within ten days after the party receives notice of which judge or judicial officer is to preside at the trial or hearing, but not later than the commencement of the trial or hearing.” Minn. R. Civ. P. 63.03.
Minn. R. Crim. P. 26.03 Subdivision 14(4) indicates that the notice to remove must be served on the opposing counsel and filed with district court within seven days after the party receives notice of the name of the presiding judge. The notice must be filed before the start of the trial or hearing, and notice is not effective against a judge who has already presided at the trial, or given hearing, if the removing party had notice that the judge would preside at the hearing. Minn. R. Crim. P. 26.03 Subd. 14(4)(a-d).
As you can see, there are slight nuances regarding the service of notice in civil and criminal cases. It is important that you are correctly advised by an expert attorney as to which rules are applicable to your case.
- Court Hearing: The court may schedule a hearing to consider the recusal request. During the hearing, you can present your arguments and evidence for why the judge should be recused. The judge might also allow the other parties to present their perspectives. In some instances, where a hearing is already set for the particular case, the Court may allow you to present your motion at the previously scheduled hearing.
- Judge’s Decision: After considering the arguments and evidence, the judge will decide whether to recuse themselves. If the judge agrees to the recusal, a new judge will be assigned to the case. If the judge denies the recusal request, the case will proceed with the original judge.
- Appeal Process: If the judge denies the recusal request and you believe the decision was incorrect, you might have the option to appeal the decision to a higher court with a disinterested judge. Be sure to consult with your attorney to understand the appeal process and its requirements. The appellate process is complex, time-consuming, and therefore expensive. It is important to understand the viability of your appeal prior to investing significant resources. Ask your attorney if appealing is advisable in your case, and whether an appeal is likely to succeed based on the facts of the given situation.
It’s important to consult with an attorney who specializes in the relevant area of law and jurisdiction. They can provide you with accurate advice and guide you through the appropriate legal steps to address your concerns about the judge on your case. Keep in mind that these processes can be time-consuming, costly, and may not always result in the removal of the judge, which may have adverse consequences to your case. Before deciding to proceed with removing a judge from your case, ensure that you have thoroughly considered your options with an expert attorney.
