COURT FOR THE COUNTY 
| Chapter 18: Disqualification of Judge |
A motion to disqualify a judge is governed by MCR 2.003. The motion must be filed within fourteen days of knowledge of the disqualifying issue and must be accompanied by an affidavit.
18-1 Grounds for Disqualification
The potential, but not exclusive, grounds for judicial disqualification, according to MCR 2.003, are:
1. The judge is personally biased or prejudiced for or against a party or attorney.
2. The judge has personal knowledge of disputed evidentiary facts concerning the proceeding.
3. The judge has been consulted or employed as an attorney in the matter in controversy.
4. The judge was a partner of a party, attorney for a party, or a member of a law firm representing a party within the preceding two years.
5. The judge knows that he or she, individually or as a fiduciary, or the judge's spouse, parent or child wherever residing, or any other member of the judge's family residing in the judge's household, has an economic interest in the subject matter in controversy or in a party to the proceeding or has any other more than de minimis interest that could be substantially affected by the proceeding.
6. The judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
(a) is a party to the proceeding, or an officer, director or trustee of a party;
(b) is acting as a lawyer in the proceeding;
(c) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding;
(d) is to the judge's knowledge likely to be a material witness in the proceeding.
The presence of a biased judge at trial or sentencing is one of the errors that "are so fundamental and pervasive that they require reversal without regard to the facts and circumstances of the particular case." Delaware v Van Arsdall, 475 US 673; 106 SCt 1431; 89 LEd2d 674 (1986); Rose v Clark, 478 US 570; 106 SCt 3101; 92 LEd2d 460 (1986); In re Hudson Lumber Co., 301 Mich 77 (1942).
The defendant must overcome the heavy presumption of judicial impartiality. Under MCR 2.003(B)(1), disqualification is warranted only if the judge is personally biased or prejudiced. The bias must have its origins in events or sources of information outside the judicial proceedings. Cain, et al v Department of Corrections, 451 Mich 470 (1996).
The court in People v Lowenstein, 118 Mich App 475, 482 (1982), stated the test as: "not whether or not actual bias exists but also whether there was such a likelihood of bias or an appearance of bias that the judge was unable to hold the balance between vindicating the interests of the court and the interests of the accused."
Actual personal prejudice is shown where the judge expresses a preconceived notion of defendant's guilt, People v Gibson, 90 Mich App 792 (1979), or some degree of personal animus, People v Lobsinger, 64 Mich App 284 (1975). The fact that the judge sat as fact finder at a previous trial or proceeding, People v Upshaw, 172 Mich App 386 (1988); People v White, 411 Mich 366 (1981), or that the judge presided over a co-defendant's trial, US v Hartsel, 199 F3d 812, (CA6, 1999), does not automatically require disqualification absent some showing of actual bias, partiality, or prejudice.
In some circumstances, a trial judge is required to raise the issue of disqualification on his or her own motion, People v Dixson, 403 Mich 106 (1978). In People v Hale, 72 Mich App 484 (1976), the judge who had knowledge that a prosecution witness passed a polygraph exam before trial should have disqualified himself from ruling on a motion for new trial.
The judge you are challenging hears the motion. If he or she denies the motion and you are in a county of more than two judges, you can request review by the chief judge. If you are in a single judge county or are challenging the chief judge, the request gets referred to the state court administrator for assignment to another judge.
Anyone considering the filing of a motion to recuse a judge understands the difficulties involved in making such a decision. If a judge is biased against your client or her case, you should consider asking the judge to recuse herself. The risks are obvious: if you lose the motion you have to live with an already biased and now angry judge presiding over your client's trial. If you win, the new judge may not be an improvement. Again, this strategic decision can only be made in the context of your case and after a thorough discussion of these issues with your client.
18.1 Motion to Disqualify Judge [Download: WP | Word | PDF]
COURT FOR THE COUNTY
_____________________________________
PEOPLE OF THE
STATE OF MICHIGAN,
Plaintiff,
vs No. 
Hon. 
Defendant.
_____________________________________/
The Defendant, 
, by 
attorney, moves that this Court recuse itself in this matter
pursuant to MCR 2.003 and the following:
1. 
is personally biased or prejudiced 
MCR 2.003B)(1).
2. 
has personal knowledge of disputed evidentiary facts concerning the proceeding.
. MCR 2.003(B)(2).
3. 
has been consulted or employed as an attorney in the matter in controversy.
. MCR 2.003(B)(3).
4. 
was a partner of
within the preceding two years. 
. MCR 2.003(B)(4).
5. 
has a financial or an economic interest in the subject matter in controversy or in a party to the proceeding or
has any other more than de minimis interest that could be substantially affected by the proceeding either
individually or as a fiduciary. 
.
MCR 2.003(B)(5).
6. 
MCR 2.003(B)(6).
7. For all of these reasons, 
believes he cannot receive his constitutional rights to due
process and a fair trial. Cain, et al, v Department of Corrections, 451 Mich 470 (1996); Delaware v Van Arsdall, 475 US
673 (1986); Rose v Clark, 478 US 570 (1986).
For these reasons, 
requests that this Court recuse itself.
Respectfully submitted,
Attorney for Defendant