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Thursday, January 27, 2011
GETTING RID OF A BAD JUDGE!
Do you have a bad judge? Does he yell at you? Threaten you with contempt? Tell you that you are no good? If this is so, you might consider getting rid of your judge. Honestly! You can actually do that.
Ordinarily, a judge has the duty to hear all cases brought before him. However, there are statutory reasons why a judge can be automatically disqualified from a case. These reasons are covered in the Connecticut General Statutes Section 51-39. These statutes provide detailed information about disqualifying a judge because of relationship, i.e. the judge has a family relationship with one of the litigants and/or because of interest, i.e. the judge has a personal or financial interest in the outcome.
Otherwise, the disqualification of a judge does not come automatically. Instead, a judge him or herself must decide to remove him or her self from a case because he or she has not lived up to the judicial code of conduct.
Improper behavior on the part of a judge is simply not acceptable, and upon the motion of the offended party, a judge should rule to recuse himself from a case if he violates the judicial code of conduct. In this regard, consider Canon 2 of that code which states that a Judge shall perform the duties of the judicial office impartially, competently, and diligently and Rule 2.6 which requires that a judge accord to every person involved in a proceeding, or that person's lawyer, the right to be heard according to law. In other words, if a judge is busy mistreating you, he or she can't possibly be obeying the judicial code of conduct and should recuse him or herself.
What is involved in getting rid of a judge? What you have to do is file a motion for disqualification or the title you would actually use on your motion: Motion To Recuse. The Connecticut Practice Book 2011 provides specific instructions for filing such a motion and they are as follows:
Sec. 1-23. Motion for Disqualification of Judicial Authority, A motion to disqualify a judicial authority shall be in writing and shall be accompanied by an affidavit setting forth the facts relied upon to show the grounds for disqualification and a certificate of the counsel of record that the motion is made in good faith. The motion shall be filed no less than ten days before the time the case is called for trial or hearing, unless good cause is shown for failure to file within such time.
Don't forget that once you've written up your affidavit for the Motion to Recuse, you can go to the Court Service Center and have the clerk notarize the affidavit for free.
The irony to a Motion to Recuse is that the judge who hears your motion has to be the judge you are actually attempting to recuse. So the judge has to judge himself as having in some way violated the judicial code of conduct to the extent that he has to order himself to step down.
As you can imagine, there are some problems with making a motion like this. One, the judge can deny your motion and continue on being the jerk she has been so far, but now she is a really angry jerk, an angry at you jerk because you had the nerve to call her on it with your motion to recuse. Now she is really going to be nasty. I had that situation. I made a Motion to Recuse which the judge appeared to take calmly, but at a point in the hearing where she injured my case with a bad ruling she basically spoke up with the equivalent of something like, "Well, you can dish it out, but you can't take it."
Second, the judge could go ahead, recuse himself from the case, and then assign his best friend to the case, someone who is equally if not more biased than he is. So you could end up exchanging one bad judge for an even worse judge. Related to that concern is simply that even if the judge doesn't set you up by choosing a successor who is no good, the fact is the next judge on the list could be equally bad. So, in some ways, leaving things as they are and doing the best you can with what you have is the best approach.
However, the problem is that if you don't make a Motion to Recuse on the trial court level, you can't make up for the omission later on and claim it. Such was the finding of the Court in Bieluch v. Bieluch 199 Conn 550, 552-553, A.2d 8 (1986) where it stated "The defendant's claim of judicial bias must fail if he did not file a motion to disqualify in trial court. We have repeatedly refused to consider claims of trial court bias in the absence of such a motion."
So you are kind of damned in you do and damned if you don't!
On the other hand, if you have everyone mad at you in court, you probably have a big enough reputation in the whole courthouse to just throw up your hands, and say "What the heck, I might as well go for it." The decision is up to you.
What is the threshold for determining whether a judge's conduct has gotten to the point where he should recuse himself? According to McKenna v. Delente 123 Conn App 137, 143 1 A.3d 260 (2010) "In applying the standard, we ask whether an objective observer reasonably would doubt the judge's impartiality given the circumstances."
Officially, a Motion to Recuse is rarely granted by the Court, but I'd bet it happens a lot more than you might imagine. For those of you who are speaking truth to power, it's a pretty powerful way to speak that truth and I'd definitely go for it if the time is right.