Moving to Disqualify the Judge on Bias

Editor’s Comment: I’ve been getting a lot of questions about this. This is for general information only and neither advice or instructions on any particular case. As a general rule, a motion to recuse that is properly written and gives any reasonable basis for the doubt of the client that he or she will receive fair treatment without bias is enough to mandate that the Judge recuse himself or herself. But it is up to the Judge’s discretion to determine whether the motion was filed in good faith. So if you are going to try to disqualify every judge, you are going to met with resistance you cannot overcome.

Recusal of a judge is a serious matter. If they blow up in the courtroom in anger and obviously have some personal issues with the case, the parties or their lawyers then it is proper to say that it is probably a good idea that they recuse themselves and they often will do just that without motion from either party.

Bias is not easy to define. Just because a judge rules against you on something doesn’t mean they are biased. And if the Judge doesn’t apply the law correctly in your view that doesn’t mean there is bias either, but then there is an appeal if you made a proper record.

If you think that substantive bias is at play then you should say so and inquire of the judge as to whether he or she is making certain presumptions that the law doesn’t require or permit. These inquiries must be specific and tailored to the case at hand rather than general political affiliations. I would liken it to examining an expert for their credibility, and whether they have ever found that their client was wrong etc. Your questions should be directed at issues that are present in the case.

“Judge, my client has raised some questions about possible bias and I would like to address some questions to the bench if your Honor would permit it. Have you already made up your mind about the merits of each side without examining any of the evidence? Is there anything stopping you from waiting until all the evidence is in before you make up your mind? Do you have any preconceived notions about the credibility of my client or the other side? Do you think it matters whether the party bringing this foreclosure is in privity with anyone in the chain? Do you think it matters that the party bringing the foreclosure action has or has not paid anything to acquire this loan?”

There are many other questions you could ask. Some will be rebuffed by the judge and some won’t. By artfully crafting your questions you might be able to direct the judge’s attention to factors you will be later arguing, and getting him or her to see these arguments or facts in a whole new light. That is where experience as a litigator comes in. If you challenge the judge in an adversarial manner you better be willing to go all the way through possible contempt of court. It takes courage to be willing to have the bailiff grab your shoulder or even put cuffs on you.

If your questions do not reveal any such bias, then it is time to drop it. The client may still object in which case you should state the objection on behalf of the client and let the judge rule without further argument from counsel. Remember this should be done out of respect for the court system as well as the judge sitting on the bench in front of you. There is a good chance your motion will be denied and you will now be stuck in front of a judge who is growing more hostile to you or your client by the minute. Be careful in what you say and how you say it. If you really want to pursue it, you can bring it up on an interlocutory appeal in some jurisdictions but you better have some strong indicia of bias on the record (not in your head) or else your appeal will be denied summarily.


Motion To Disqualify A Judge – Is Setting A Foreclosure Trial Violating The Court’s Neutrality?

31 Responses

  1. The taxpayer’s should not be bonding & protecting judges who are not upholding the law.

  2. Who are the judges bonded by? They are public sector workers paid by the people so who is bonding them? If it is the taxpayer’s who are bonding them that is b.s. If it is a private entity that is bonding them that presents a serious conflict of interest issue.

  3. Deborah,

    The “bond” is the thing…most vulnerable. And I do remember a case going back where this group went after judges and city officials, put liens on their personal property, funny. It did work. Idaho I think?

  4. People have sued judges. Those may have been private lawsuits but, if the judges aren’t upholding the laws of this land they should be fired by the people. If the judges are getting private funding and are also collecting a public paycheck, benefits like insurance and other U.S. TAXPAYER paid perks and their pensions are being funded from our misery they are causing, that needs to stop. The same goes for any public sector worker including the Politicians.

    WGN also reported last night in their segment on “judiciary elections” that it is all perfectly legal how these “consultants” working for the judges are doing what amounts to collecting bags of juice money for certain judges. I don’t see how that is legal or falls under the category of fund raising. It sure is not legal how the judges are buying their seats on the bench for $30,000.00 in public elections. It is PAY TO PLAY just like what Blago did. It is all criminal bullshit and we are all paying for it.

  5. you cant sue a judge poppy
    they are indemnified as judges, otherwise everybody would sue em,
    they make “mistakes” but its the fraud upon the court perpetrated by attorneys representing “the bank” and the concealment of known facts that would change the outcome of the litigation , if, the material facts were looked at without partiality- that’s where I have a huge problem with all of this.

  6. WGN News did a special report tonight on “judiciary elections.” It goes like this ..if you want to become a judge in Illinois you are told… “You gotta do certain things to get elected and you have to hire a consultant.” ……. “It’s who you know in the Democratic Party in Cook County, Illinois…” All Democratic elected judges paid a slating fee in Cook County of $30,000.00 to get “elected.”

    That’s right, we don’t elect these judges….it is all pay to play politics. So why did Blago go to jail?

    Federal Judges are appointed for life by the President but must be confirmed by a simple minority vote by the Senate.

    It sure sounds like a dictatorship.

  7. UGH! UGH! UGH!

    California Procedure

    B. Disqualification for Cause.
    1. Grounds for Disqualification.
    d. Interest in Proceeding.

    1. In General.

    (1) Nature of Prohibition. A judge’s personal or financial interest in the subject matter has long been a ground for disqualification. In Meyer v. San Diego (1898) 121 C. 102, 53 P. 434, the court declared that the statutory disqualification for interest “is but an expression of the ancient maxim that no man ought to be a judge in his own cause, a maxim which appeals with such force to one’s sense of justice that it is said by Lord Coke to be a natural right so inflexible that an act of parliament seeking to subvert it would be declared void. … It is a principle whose strict observance is dictated both by natural justice and an enlightened public policy. For it is not enough that a judicial decision be sound. It is of next importance that the tribunal rendering it be free from the charge of interest or the taint of partiality, else public confidence will be destroyed and judicial usefulness gravely impaired.” (121 C. 104.)

    (2) Scope of Disqualification. A judge who “has a financial interest in the subject matter in a proceeding or in a party to the proceeding” is disqualified. (C.C.P. 170.1(a)(3)(A); see C.J.E.R., Judges Benchbook, Civil Proceedings: Before Trial 2d, §7.17.) A judge is deemed to have a financial interest in either of the following circumstances:
    (a) A spouse or minor child living in the household has a financial interest. (C.C.P. 170.1(a)(3)(B)(i).)
    (b) The judge or the spouse of the judge is a fiduciary who has a financial interest. (C.C.P. 170.1(a)(3)(B)(ii).) For this purpose, “fiduciary” includes an executor, trustee, guardian, or administrator. (C.C.P. 170.5(g).) (On special statute applicable in probate proceedings.)

    (3) Duty To Keep Informed. “A judge has a duty to make reasonable efforts to inform himself or herself about his or her personal and fiduciary interests and those of his or her spouse and the personal financial interests of children living in the household.” (C.C.P. 170.1(a)(3)(C).)

    (4) What Constitutes Financial Interest. The term “financial interest” means (a) ownership of more than a 1 percent legal or equitable interest in a party, (b) a legal or equitable interest in a party of a fair market value in excess of $1,500, or (c) a relationship as a director, advisor, or other active participant in the affairs of a party. (C.C.P. 170.5(b); see Code of Judicial Ethics, Canon 3E(3) [ownership of corporate bonds issued by party is disqualifying if fair market value exceeds $1,500; ownership of government bonds issued by party is disqualifying only if outcome could substantially affect value of judge’s bonds].) (See Rothman, California Judicial Conduct Handbook 3d, §7.30 et seq.; 10 A.L.R.2d 1307, 1313 [nature of disqualifying interest]; 25 A.L.R.3d 1331 [disqualification of judge based on ownership of stock of corporation involved in litigation]; 56 A.L.R.5th 783 [disqualification based on ownership interest in litigation]; 46 Am.Jur.2d (2006 ed.), Judges §92 et seq.)

    (5) What Does Not Constitute Financial Interest
    (a) “Ownership in a mutual or common investment fund that holds securities is not a ‘financial interest’ in those securities unless the judge participates in the management of the fund.” (C.C.P. 170.5(b)(1); see Code of Judicial Ethics, Canon 3E(3) [ownership of mutual or common investment funds that hold bonds is not disqualifying].)
    (b) “An office in an educational, religious, charitable, fraternal, or civic organization is not a ‘financial interest’ in securities held by the organization.” (C.C.P. 170.5(b)(2).)
    (c) “The proprietary interest of a policyholder in a mutual insurance company, or a depositor in a mutual savings association, or a similar proprietary interest, is a ‘financial interest’ in the organization only if the outcome of the proceeding could substantially affect the value of the interest.” (C.C.P. 170.5(b)(3).)

  8. And one more tidbit, for anyone who cares…the judges are bonded. Go after their bond for the fraud and conversion, civil disobedience, failing to follow the law of our country…a$$ wipes.

  9. That’s right poppy. Foreclosure is a massive scam because We The People fund the FEDERAL RESERVE BANK CORP……WE THE PEOPLE pay for EVERYTHING UPFRONT AT THE ORIGINATION..& THE FED NEVER PAYS BACK ANYTHING WE FUND ……THEY PRINT AS MUCH MONEY OFF OF OUR AUTOGRAPHS AS THEY WANT OFF OF OUR BACKS ……THEY CREATE MASSIVE WEALTH FOR THEMSELVES & THEIR CRIMINAL FRIENDS HERE AROUND THE GLOBE. The bankster corp just keeps on robbing us and handing us their fraudulently induced debts. Most of those people working at the courthouses don’t have a clue about how we are all being used and robbed by the politicians /banksters.

  10. It is just my opinion here, but WE should be filing suits against the lawyers, they are the perpetrators. And why can’t we file against the judges? How dare these “public servants” disobey the law of the land. The heat needs to be turned up…as for joe, I love it. They should be afraid, we are coming…and all the lies and deception will rain down on them.

  11. My case has been going on for a couple of years now. I showed the judge that MERS assigned my loan and there is two allonges and servicer is no where in the chain and whole bunch of stuff like the occ couldn’t even find my loan with wells fargo. And the judge told me I don’t care and she gave them an order of reference. While leaving the court house I chased the banks lawyer screaming at him that I’m going to report him the bar association for pushing forged documents and going to punch him in the face it was so funny he ran a block back to the court screaming help help court officer help it was funny. Then he was afraid to come out of the court house. Plus screaming outside the court that. Judge Judith McMahon from Staten island NY doesn’t know anything and she is allowing forged documents to go through her court

  12. It is my personal opinion, who gives a shit what any of them think. remind them about the law…did they forget we have them? I live in a small county and they all know me on a first name basis. I care less. When did they become so important, we should fill our hearts with effing joy they exist…they are paid employees of the people. They need to get over their lofty attitude. Conversion is a crime, for everyone. And these district-state courts have zero jurisdiction to rule on commercial cases, UCC stuff, etc…they are 100% lying bastards.

  13. One trick the politicians use is they move the judges around when things get too heavy. Like the Bob Seger song “Fire Down Below” says…”

    …”here comes the banker & the lawyer & the cop….one things for certain it ain’t never gonna stop…when it all gets too heavy, that’s when they come and they go….they got one thing in common…they got the fire down below.”

  14. Corporate America and forced taxation feeds the war machine.

  15. The judges staff are no doubt fearing for their jobs. Well tough shit….the law is law for everyone or the law is the law for no one. You know the country has gone to hell when being honest is considered dangerous.

  16. Foreclosures are no different from anything else. Public media create public opinion. Boycott ALL companies advertising during the “news” and demand the truth from media. The whole truth and nothing but. Once they risk losing sponsors, they will shape up in a hurry!!! Money talks. Let’s make the little we have left do the talking. 99% of the population does buy a lot. Sponsors won’t like the idea of losing that (huge) market…!

    As Chossudovsky said: “it is easier to break BBC than to break Pentagon.”

  17. True, the plaintiff’s fail to invoke the courts subject matter jurisdiction because they fail to state a claim at the onset of their fc suits as the law requires. That is deception and the intent to deceive is criminal. Therefore, we the defendant’s are well within our rights to ask the court to invoke it’s civil, criminal subject matter jurisdiction upon Presentment of these false reps & warranties…..AKA …. the copies of the counterfeit, forged notes. Nothing they are doing is legal. They are abusing our digital signatures because they are unauthorized.

  18. I have tried this, and it does not work very well. Even the judge’s staff was at my throat. People seem to have lost sight of our due process rights.



    …Those arrested were charged with “incommoding,” or obstructing traffic, according to Ann C. Wilcox, a lawyer representing the protesters. Many of the protesters who were not arrested had set up tents outside the building and said they planned to spend the night.

    (UPDATE: On Tuesday morning, police arrested those who stayed the night. The video above shows Carmen Pittman surrounded by three large officers before she is tased. More on her story of foreclosure here and below.)

    The protest was organized, in part, by Occupy Our Homes, a grassroots organization that grew out of the Occupy Wall Street demonstration to support homeowners facing foreclosure. Other grassroots organizations, including coalitions from as far as Washington state, California and Florida, also joined.

    No Justice Department officials come outside to acknowledge the protesters. A department spokesman wasn’t available for comment after business hours…

  20. Look at my case usca 12-16192 9th circuit because i think you will see something poppy.

  21. Im talking poppy yes

  22. @ Deborah

    Most of the lower courts are administrative courts and do not have subject matter jurisdiction. Administrative courts do not have commercial jurisdiction, is my understanding. Many of these cases need to be removed to Federal Court, this is potentially where they lose. The laws are held tighter in a more sophisticated venue.

    Jurisdiction is a huge issue. And this is where you appeal, under your 12(b)(6), which almost always the request by the banks. If anyone has noticed, they do the same things over and over, this is the flaw. We know our cases better than anyone. They only have a file, which has never been verified. They have no strategy…burn them up, spend their money, diminishing returns work. IMHO

  23. The report on “judicial elections” will be on the WGN News Chicago tonight at 9:00 p.m Central time. CLTV their affiliate will air that report nationally at 11:00 p.m. Central time.

  24. WGN News at 9:00 tonight are doing a special report on…. How does someone become a judge? They are going to discuss “judicial elections” and are asking the question “are judges buying elections?”

  25. There need be only the appearance of bias
    Bias can exist in the mind for many reasons
    But sometimes it appears so blatant that recusal or motion for is unavoidable
    A judge who drmonstrates an abuse of discretion is abusing his power especially if due process of law is being compromised.
    They have ultimate power to administer justice or injustice and should be held to the highest standards, i have case law.

  26. True…. the judges are a big club of attorney’s.

  27. “Recusal of a judge is a serious matter. If they blow up in the courtroom in anger and obviously have some personal issues with the case, the parties or their lawyers then it is proper to say that it is probably a good idea that they recuse themselves and they often will do just that without motion from either party.”

    Good luck with that! Judges are like everyone else. They talk. Get one kicked out of a case and see how well it plays out with the judge taking over who’s already been briefed… It’s a big club. And as Carlin said, “You and I aren’t in it”.


  29. Indeed. Circuit judges have great discretion and power; we are NOT to insult them (ie the Court) nor anger them in our emotional haste to win: we’re there for justice, not a fight.

  30. Bias: Bankruptcy Judge in DE. states: No homeowner is getting a free house in my court! But the bankers get one? How’s that work? On tape…missing in the transcript.

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