The question is whether a divorce litigant can move to have the judge in the case substituted for another judge. The answer is: It depends. For example, I’m not 100% sure about mid-trial substitutions as of right. I think that is discretionary and I think it depends on the court, on the situation, on the evidence of prejudice that is presented, etc. It probably also depends on the state you are in. I am sure that every state has rules with regard to substitution of a judge. But, certainly, in civil matters like divorce cases, I am certain these rules have variations. Pre-trial substitutions? I think it’s an easier proposition. But do you automatically have a right to a new judge? Hey. I don’t know. I don’t think so. I think there are always going to be caveats.
Off the top of my head, I couldn’t even tell you what the rules are in New York for something like this. I would really have to research this. I do believe that sometimes, divorce judges need to be substituted. I’ve seen cases where, if the judge did not hate a particular litigant (or the litigant’s attorney?) I would have been surprised. What people don’t understand is that judges are just people. Sure, they are supposed to be impartial. But they are just people. They have likes, dislikes, biases, prejudices and vices. They are like priests. They are like the Pope. They are supposed to be above reproach. They are supposed to be totally fair. But impartiality is a matter of perspective. And there are times in your divorce case, that you may wonder if the judge dislikes you – especially when you see ruling after ruling going in favor of your soon to be ex spouse. And you are not paranoid. The judge may really dislike you. Or the judge’s law secretary dislikes you and influences the judge behind closed doors.
Can you do anything about it? Well, I think in most jurisdictions, in the U.S. certainly, you can move to substitute a judge just like you can substitute your counsel. It’s a constitutional right, pretty much; a question of due process. While a litigant does not have the right to have a particular judge hear their case, he or she does have a right to an impartialjudge and if for any reason the litigant feels that a partial ruling is not likely with a particular judge, then a motion can be made to substitute that judge. But I think this would be more likely to be granted pre-trial and not after the trial has commenced. This is one of those motions that have to be made before the trial begins. This is my hunch. Don’t quote me on it. But its a constitutional issue, in my estimation:
U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2. Procedural due process requires a fair trial in a fair tribunal, with an absence of any actual bias. In re Murchison, 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625 (1955). Neither judge nor jury may be predisposed as to the outcome of a case. Witherspoon v. Illinois, 391 U.S. 510, 521, 20 L. Ed. 2d 776, 784, 88 S. Ct. 1770, 1776 (1968). Tumey v. Ohio, 273 U.S. 510, 532, 71 L. Ed. 749, 756, 47 S. Ct. 437, 444 (1927). More
I know there are rules in states like California, Wisconsin, Florida, Connecticut on this issue….I’ve never actually had to move to substitute a judge myself, as I said. So I can’t swear what the procedure is in states like New York. But I am certain there are rules of civil procedure and pursuant to the state and federal constitution, that would allow a litigant to have a judge substituted, if warranted.
In Illinois, there are clear (depending on who you talk to) rules for substituting judges. I was just reading this great article on Northwestern Law written by one of their graduates called: Substitution of a Judge as of right : when is it too late? It is written by Marie Fahnert and Tracey Daniels. According to the article, in Chicago, you can substitute a judge as of right if a number of criteria are met, including but not limited to, making a “timely” request for substitution; and so long as the judge has not ruled on any substantial issues.
Here’s the Chicago statute on substitution of a judge as of right, per the cited article:
Section 2-1001. Substitution of judge.
(a) A substitution of judge in any civil action may be had in the following situations ….
(2) Substitution as of right. When a party timely exercises his or her right to a substitution without cause as provided in this paragraph (2).
(i) Each party shall be entitled to one substitution of judge without cause as a matter of right.
(ii) An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties.
(iii) If any party has not entered an appearance in the case and has not been found in default, rulings in the case by the judge on any substantial issue before the party’s appearance shall not be grounds for denying an otherwise timely application for substitution of judge as of right by the party. (1)
Each state would obviously have its own statute but I am willing to bet they read similarly. I found this New York case (it was not a divorce but was a civil matter in the court of appeals) that dealt with the question of substitution of judges and it makes clear that substitution of judges in New York (well, on the appellate level) is not an easy thing to do but it does imply that it can be done, and is done under certain prescribed circumstances – just not in the case at bar:
This Court has exclusive jurisdiction under the Constitution and the CPLR to entertain petitioners’ motion for leave to appeal (NY Const, art VI, § 3[b]; CPLR 5602 ). No other judicial body exists to which the motion for leave to appeal could be referred for disposition. Petitioners acknowledge this, but assert that the Court could designate substitutes to hear this matter. Although the Constitution provides for substitutionof Judges of this Court who choose to recuse or are disqualified (NY Const, art VI, § 2), the designation of substitute judges is not appropriate here.
The Court of Appeals has a unique role and responsibility in State government. It is the court of last resort from which no appeal lies on questions of New York law (see, NY Const, art VI, §§ 2, 3). Furthermore, under our State constitutional system, the Court of Appeals decides the scope of its own power and authority. If disqualification were required whenever the Judges were sued as individuals upon a challenge to an act of the Court, the result could be substitution of the entire constitutionally appointed court, leaving “the most fundamental questions about the Court and its powers to persons whose selection and retention are not tested by constitutional processes” (Matter of Vermont Supreme Ct. Admin. Directive No. 17 v Vermont Supreme Ct., 576 A2d 127, 132 [Vt]).
The Court also has primary responsibility for the administration of the judicial branch of government, and some administrative rule-making powers are vested exclusively in the Court of Appeals (see, NY Const, art VI, §§ 28, 30). Thus, disqualifying the Judges of this Court each time their administrative powers are challenged would “render the rule- making process self-defeating and nugatory” (Berberian v Kane, 425 A2d 527, 528 [RI]). In each instance, the ultimate determination regarding an administrative order promulgated by this Court would be rendered by a bench comprised of substitute jurists. Moreover, substitutionof other judges for this Court under these circumstances would “subject the judicial system to an inordinate amount of delays and inefficiency” (State ex rel. Hash v McGraw, 376 SE2d 634, 638 [W Va]). It would also “put power in the hands of litigants to frustrate our judicial system” (Cameron v Greenhill, 582 SW2d 775, 776, cert. denied 444 US 868[Tx]) by allowing them “a circuitous appeal from this court as regularly constituted to this same court as specially constituted” (Ex Parte Farley, 570 SW2d 617, 623 [Ky]).
So what’s the takeaway? Well, as I said, a litigant has a constitutional right to a fair hearing and if a judge’s conduct is absolutely egregious, and it is demonstrated, I am certain a litigant can have that judge removed and substituted for a more impartial judge, as a matter of right – with some caveats, of course – in just about any state in the Union, and the territories too. Feel free to correct me if I’m wrong on this, ye esteemed and learned counsels out there, but this is pretty much my conclusion on this question.
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