Judge's Corner

Article Index

Summary Judgment Motions - To File or Not to File? The Honorable Danielle J. Hunsaker, Washington County Circuit Court, Jason Kafoury, Kafoury & McDougal, and Joel Mullin, Stoel Rives, LLP (April 2019)

Judicial Challenges The Honorable Janet Stauffer, 7th Judicial Circuit (August/September 2017)

Use of Fictitious Names for Parties in Civil Litigation in Oregon The Honorable James Hargreaves (Senior Judge, retired), Lane County Circuit Court (June/July 2017)

The Judge's Pledge The Honorable Susan Tripp, Marion County Circuit Court (May/June 2017)

Organizing for the Courtroom The Honorable Daniel R. Murphy, Linn County Circuit Court (March/April 2017)

A Two Year Journey with Odyssey in Juvenile Court The Honorable Lindsay Partridge, Marion County Circuit Court (January/February 2017)

Lane County Streamlined Jury Trial Project The Honorable Curtis Conover, Lane County Circuit Court (November/December 2016)

20 Ways to Further Justice The Honorable Ilisa Rooke-Ley, Lane County Circuit Court (October/November 2016)

Managing Multi-Party/Complex Litigation without Driving Your Judge Crazy (and maybe even making it easier for everyone) The Honorable Henry Kantor, Multnomah County Circuit Court (September 2016)

Managing Multi-Party/Complex Litigation without Driving the Judge's Staff Crazy The Honorable Eve L. Miller, Clackamas County Circuit Court (August 2016)

Do's and Don'ts in the Courtroom The Honorable Lisa Greif, Jackson County Circuit Court (June/July 2016)

Preparation for a Status, Case Management, or Pretrial conference - or how to get more out of a non-evidentiary proceeding in criminal and family court cases The Honorable Kirsten E. Thompson, Washington County Circuit Court (April/May 2016)

Postponements The Honorable Richard Barron, Presiding Judge, Coos/Curry County Circuit Court (March 2016)

Consider Trying More Cases The Honorable Suzanne Chanti, Lane County Circuit Court Judge (February 2016)

Professionalism - It Counts Both In and Out of the Courtroom The Honorable Brian Dretke, Union County Circuit Court Judge (January 2016)

Changes to Sex Changes The Honorable Beth A. Allen, Multnomah County Circuit Court Judge (December 2015)

Top 25 Tips from a Senior Judge The Honorable Michael C. Sullivan, Senior Judge (retired), Deschutes County (November 2015)

How to Succeed at Power Point In the Courtroom The Honorable Michael McShane, US District Court (October 2015)

Effective Use of Evidence At Jury Trial The Honorable Matthew Donohue, Benton County Circuit Court (September 2015)

Making a Record for Appeal, The Honorable Charles M. Zennaché, Lane County Circuit Court (August 2015)

Access to Civil Justice in Oregon's State Courts, The Honorable David Brewer, Associate Justice, Oregon Supreme Court (July 2016)

What Jurors Want: A Look Into the Minds of Jurors, The Honorable John V. Acosta, United States Magistrate Judge (June 2015)

Handling the "Half-se" Hearing, The Honorable Mustafa Kasubhai, Lane County Circuit Court (May 2015)

Effective Voir Dire, Judge Thomas Hart, Marion County Circuit Court (April 2015)

The New Judge on the Block, Judge Lung S. Hung, Malheur County Circuit Court (March 2015)

The Gift of Finality: One PJ's Perspective, Judge Karsten H. Rasmussen, Lane County Circuit Court (February 2015)

ORCP 68 Attorney Fees - when, why and how to seek them, Judge Deanne L. Darling, Clackamas Juvenile Court (January 2015)

Difficult questions must be answered before they are asked, Judge Edward J. Jones, Multnomah County Circuit Court (December 2014)

Judicially Hosted Settlement Conferences, Judge Jamese L. Rhoades and Sr. Judge Don Dickey, Marion County Circuit Court (November 2014)

Working together to make discovery more efficient, The Honorable Youlee Yim You, Multnomah County Circuit Court (October 2014)

Court Trials - A Jury of One, The Honorable Katherine E. Tennyson, Multnomah County Circuit Court (September 2014)

Making the Most of Short Evidentiary Hearings, The Honorable Daniel R. Murphy, Linn County Circuit Court (August 2014)

Vouching, The Honorable Jay McAlpin, Lane County Circuit Court (July 2014)

Appropriate Jury Instructions Can Help Litigators Win Trials, The Honorable Paula Brownhill, Clatsop County Circuit Court (June 2014)

Evidentiary Hearings and Motion Practice in the era of Oregon e-court, The Honorable Benjamin Bloom, Jackson County Circuit Court (May 2014)

Motions in Limine - Tips for "Newer" Litigators, The Honorable Jodie Mooney, Lane County Circuit Court (April 2014)

The Honorable Janet Stauffer
7th Judicial Circuit - Gilliam, Hood River, Sherman, Wasco & Wheeler County Circuit Courts
(August/September 2017)

Judicial Challenges

A party may move to disqualify a judge from hearing a case if the judge has an actual conflict, the judge is, in fact, prejudiced against the party, or the party has a good faith belief that the party cannot have a fair and impartial hearing before the judge. ORS 14.210-270. Historically the statute required a showing of prejudice. The statute no longer requires a showing of prejudice or bias.

Motions based on a party's belief are subject to strict time lines. An affidavit in contested cases must be filed within five days after the matter is at issue or within 10 days of assignment or appointment to a judge. ORS 14.260(2). In smaller judicial districts (population of less than 100,000) any judge is deemed immediately assigned to the case for the purpose of the statutory timeline. State v. Hilborn, 299 Or 608,613, 705 P.2d 192 (1985). In judicial districts having a population of more than 100,000, a motion to challenge the judge must be made at the time the case is assigned for a trial, motion or demurrer. The motion may be made orally but must be followed, by the next judicial day, with a written motion. ORS 14.270.

No motion to disqualify a judge may be made after a judge has ruled on a petition, demurrer or motion, other than a motion to extend time. A party or attorney may not make more than 2 applications to disqualify in any case. ORS 14.260(6).

A challenge "for cause" may be made at any time. Judges may also be disqualified for cause in the specific instances listed in ORS 14.210. For example, if the judge is a party, or related to a party or attorney in the action, or if the matter is an appeal of a matter which the judge decided. Of course, judges have an ethical obligation to recuse in compliance with the Code of Judicial Conduct. OCJC 3.10.

Motions and affidavits to disqualify a judge should mirror the statute and indicate only that the attorney or client has a rational belief of inability to receive a fair trial before the named judge. The belief must be rational, but the reasons do not need to be described.

The challenged judge should only rule as to the legal sufficiency and the timeliness of the motion. Otherwise the motion should be heard by the presiding or other disinterested judge. If a judge wants to challenge the disqualification, the hearing will be heard before a disinterested judge. The challenging judge has the burden to show the motion to disqualify was made in bad faith or for the purposes of delay. ORS 14.260(1). The judge must show there was no objectively reasonable basis for the good faith belief or that the movant's sincere belief is so irrational that allowing the motion would amount to an outright hindrance of the court's ability to adjudicate cases. State ex rel. Kafoury v Jones and Londer, 315 Or 201, 843 P.2d 932(1992). The test is not whether the judge IS fair and impartial, but rather whether the movant has a good faith belief that the judge isn't fair or impartial as to the particular case. ORS 14.250 plainly states that the primary issue is the belief of the moving party, not the objective truth of that belief.

If it is clear that the primary aim of the motion is something other than procurement of fair adjudication, such as judge shopping, the motion to disqualify will be denied. Marriage of Benson and Youngblutt, 141 Or App 458, 919 P2d 496 (1996).

When a judge is disqualified by a party the matter is to be transferred to another judge. Only 2 motions to disqualify per party may be filed. If the motion is denied, mandamus is the only remedy.

Consider carefully the decision to move for a change of judge. Judges are human. Judges are also lawyers. To be disqualified because a colleague alleges a belief that a judge cannot be fair cuts to the core of the judge's job description and, more importantly, his or her Oath of Office. It is a significant event in the career of a judge that should not be lightly initiated. I would ask you to consider the potential, unintended consequences. For example, our dockets are busy - other judges having to cover for the disqualified judge adds stress to an already stressed system. Also, remember that the statute only permits two bites at the apple. Consider who might be next. My suggestion is that you consider both the short and long term consequences of such a motion.


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