How Do You Get a New Judge?
We would prefer that every case be an uninterrupted rocket ride to victory. But sometimes that’s not possible. Litigation can take a great deal of time, and even straightforward cases can have setbacks along the way. And when there’s a ruling that goes poorly, whether a minor one (you don’t get discovery you want) or serious (summary judgment against you) it’s very natural for clients to be disappointed and assume that the judge is somehow biased against them.
This is not generally the case. Judges are busy people and don’t have much interest in either developing or indulging petty grudges against litigants they barely know. They can make mistakes (sometimes serious ones) and, in the process, produce rulings that are neither perfectly reasoned nor perfectly fair. But it’s important to remember that a bad ruling doesn’t require a biased judge. And even a truly terrible ruling is rarely indicative of bias.
But the instinct to blame a judge is natural and so is the question that frequently follows: “So how can we get a new judge?” The short answer is “you probably can’t.” But since it’s a perfectly natural question to ask, it’s also worth knowing the longer answer in some detail.
Your first stop in federal court is an application to disqualify the judge under 28 U.S.C. § 455. That statute requires a judge to disqualify himself:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;
(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(i) Is a party to the proceeding, or an officer, director, or trustee of a party;
(ii) Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;
(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.
Since this is not a comprehensive list of potential problems, 28 U.S.C. § 455 also broadly requires a judge to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
Most of these grounds are straightforward factual issues, but unlikely to apply. However, the ground that receives the most attention, “bias or prejudice,” is not. To challenge a judge based on “bias or prejudice,” a party must file a timely affidavit setting forth why they believe the judge is prejudiced. Under 28 U.S.C. § 144:
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
But what must you allege in the affidavit? What is bias or prejudice?
Let’s start with what it isn’t. Bias or prejudice is not merely ruling against a party, no matter how badly reasoned, nasty, or frequent those rulings are. “Repeated rulings against a litigant, no matter how erroneous and how vigorously and consistently expressed, are not a basis for disqualification of a judge on the grounds of bias and prejudice.” [1] The fact that a judge incorrectly rules against a party over and over and over again is not a basis to disqualify them. [2]
Nor is bias shown when a judge says that a party deserves to lose. A judge is permitted to have an opinion on which side deserves to lose and to explicitly express that opinion to the parties, so long as that opinion is based on the case itself rather than some external source. [3]
And while it’s rarely stated as such, judges are very much permitted to despise individual lawyers and to make that antipathy crystal clear in every interaction in a case. Indeed, even if a judge is shown to be “biased” against an individual lawyer, that does not require disqualification unless it can be shown that the judge is also biased against the lawyer’s client. [4]
So, what does suffice? There must be evidence that a judge harbors bias toward or against a party that comes from an “extrajudicial source” – that is, something separate from the litigation itself. This is an exceedingly difficult standard to meet, as illustrated by the over-the-top facts involved in cases where a party actually meets it. For example, in Roberts v. Bailar, [5] the Sixth Circuit held that a district judge in an employment discrimination case should have been disqualified when he said during a hearing “I know Mr. Graves, and he is an honorable man and I know he would never intentionally discriminate against anybody.”
Abject racism will also work as an “extrajudicial source,” though it must be very explicit. When pressed for examples of disqualifying comments, courts often refer to Berger v. United States, [6] where a WWI era judge had the following to say about German-Americans:
One must have a very judicial mind, indeed, not to be prejudiced against the German-Americans in this country. Their hearts are reeking with disloyalty. This defendant is the kind of a man that spreads this kind of propaganda, and it has been spread until it has affected practically all the Germans in this country. This same kind of excuse of the defendant offering to protect the German people is the same kind of excuse offered by the pacifists in this country, who are against the United States and have the interests of the enemy at heart by defending that thing they call the Kaiser and his darling people. You are the same kind of a man that comes over to this country from Germany to get away from the Kaiser and war. You have become a citizen of this country and lived here as such, and now when this country is at war with Germany you seek to undermine the country which gave you protection. You are of the same mind that practically all the German-Americans are in this country, and you call yourselves German-Americans. Your hearts are reeking with disloyalty. I know a safe-blower, he is a friend of mine, who is making a good soldier in France. He was a bank robber for nine years, that was his business in peace time, and now he is a good soldier, and as between him and this defendant, I prefer the safeblower.’
But what if the judge has the good sense not indulge in naked racism or explicitly claim to have prejudged the case based on his prior experience with a party? Can over-the-top animus alone be evidence of prejudice? The answer is generally no, but there have been exceptions. In Nicodemus v. Chrysler Corp., [7] the Sixth Circuit held that judge should have been disqualified based on comments made at a preliminary injunction hearing. In the course of that hearing, the judge made clear that he was no fan of Chrysler, stating:
This thing is the most transparent and the most blatant attempt to intimidate witnesses and parties that I have seen in a long time. I don't believe anything that anybody from Chrysler tells me because there is nothing in the record that is before me and in my experience in dealing with this case that gives me reason to believe that they are worthy of credence by anybody. They are a bunch of villains and they are interested only in feathering their own nests at the expense of everybody they can, including their own employees, and I don't intend to put up with it.
The judge further went on to state that:
I find that this was a deliberate and calculated attempt to inflict damage on the plaintiff in a case which is not yet finally determined. That makes it even more difficult for me because I still have some of this case to determine.
If ever there was a time that the company should have withheld its hand, this is it. They make it very difficult for me, but I shall do my best. If I have to resolve the remaining matters in this case after hearing, I shall do my best not to allow myself to be swayed by the episodes that have been brought before me today, although there is no particular reason why under the law I should. [8]
Strictly speaking, none of these comments were “extrajudicial,” but the severity of the statements as well as the judge’s own admission that he would have a hard time being fair to the party going forward (and didn’t really feel the need to be) led to the Sixth Circuit mandating a new judge on remand.
Indeed, while still “a serious request rarely made and rarely granted,” remand to a different judge following a successful appeal is likely the “easiest” way to obtain a new judge. [9] In addition to the fact that the request does not have to be made to the very judge being disqualified, the legal standard is substantially laxer, both in its formulation and its application. An appellate court deciding whether to assign a case to a new judge must consider:
(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected,
(2) whether reassignment is advisable to preserve the appearance of justice, and
(3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. [10]
While these requests are often made in the resentencing context, they are applied with equal force in civil cases. Indeed, in Shcherbakovskiy v. Da Capo Al Fine, Ltd., [11] the Second Circuit weighed in upon the kinds of statements that would never be sufficient to require disqualification in the first instance, but which could result in reassignment on remand:
There is little doubt that the district judge would follow our instructions as to the law on remand. However, the judge has rendered a visceral judgment on appellant's personal credibility, namely that his denial of control was “nonsense,” “drivel,” a “fraud,” and a “lie.” Whether any person can take an objective second look at testimonial evidence after reaching such a conclusion is questionable, but certainly the appearance of justice would be well-served by reassignment on remand.
It’s natural for clients and counsel to be upset by adverse rulings or hostile statements from a court and to internally wish for assignment to a new judge. But the reality of the situation is that disqualification for bias is extremely rare and the high standards for achieving it make the motion unlikely to succeed in virtually all cases. Absent clear statements of “extrajudicial opinion” or overt racial animus, a party is generally stuck with the judge they drew. As such, best practice is to buckle down, try to win the judge over if possible, and if all else fails, best sure that any comments on the integrity or credibility of the parties are clearly preserved on the record for appeal.
[1] United States v. Int'l Bus. Machines Corp., 475 F. Supp. 1372, 1381 (S.D.N.Y. 1979).
[2] Liteky v. United States, 510 U.S. 540, 555 (1994) (“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”).
[3] Mirra v. United States, 379 F.2d 782, 787–88 (2d Cir. 1967) (“Any opinions formed for or against a party by reason of the evidence and observed conduct before a judge in a judicial proceeding, and the judge's expressions of such opinions, however vigorous, are not the personal ‘bias and prejudice’ required to disqualify a judge under the statute.”).
[4] In re Drexel Burnham Lambert Inc., 861 F.2d 1307, 1314 (2d Cir. 1988) (“bias against a lawyer, even if found to exist, without more is not bias against his client.”).
[5] 625 F.2d 125, 127 (6th Cir. 1980).
[6] 255 U.S. 22, 28–29 (1921).
[7] 596 F.2d 152, 155 (6th Cir. 1979).
[8] Id. at 156.
[9] United States v. Awadallah, 436 F.3d 125, 135 (2d Cir. 2006).
[10] United States v. Robin, 553 F.2d 8, 10 (2d Cir. 1977).
[11] 490 F.3d 130 (2d Cir. 2007).
