Judge Recusal in NC

​So you feel like you have drawn an unfavorable Judge and want another? How do you go about getting your Judge disqualified and being assigned a new one in civil or criminal court? Although it may appear obvious to you that your Judge has it out for you, having a new one assigned is no easy task. This may be especially frustrating if your case is an ongoing child custody or divorce battle where the same Judge keeps ruling against you over and over, perhaps for years. 

​The One Judge/One Family Rule in North Carolina basically establishes that the same Judge is often assigned to the same case indefinitely for all matters involving the same family. This can mean you are stuck with the same Judge even if you keep losing over and over again. Since a new Judge may be the only way to get a fresh set of eyes on a case let’s explore some of the criteria to disqualify a Judge in both civil and criminal cases in NC.

Judge Recusal in NC Civil Cases 

Civil cases include Family Law cases, Contract cases, Business disputes etc.. For Recusal of a Judge in a Civil Case we turn to the Code of Judicial Conduct. Some of the instances where recusal may be appropriate explicitly identified include:

• The judge has a personal bias or prejudice concerning a party.
• The judge has personal knowledge of disputed evidentiary facts.
• While in law practice, the judge, or someone with whom the judge practiced, served as a lawyer in the matter in controversy or is a material witness about it.
• The judge or judge’s spouse or minor child has a financial interest in the matter or another interest that could be substantially affected.
• The judge or judge’s spouse, or someone within the third degree of relationship to either of them, or the spouse of such a person, is (a) a party or officer, etc., of a party, (b) a lawyer in the case, (c) known by the judge to have an interest that could be substantially affected, or (d) known by the judge to likely be a material witness.

Judge Recusal in NC Criminal Cases

Recusal in a criminal case is governed by NCGS § 15A-1223. The relevant portion of the statute states a Judge may recuse himself voluntarily or a Judge must disqualify himself if he is:

• Prejudiced against the moving party or in favor of the adverse party.
• Closely related to the defendant by blood or marriage.
• A witness for or against one of the parties in the case.
• For any other reason unable to perform the duties required of him in an impartial manner.

According to the statute a motion to disqualify in a criminal case must be in writing and must be accompanied by one or more affidavits setting forth facts relied upon to show the grounds for disqualification and must be filed no less than five days before the time the case is called for trial unless good cause is shown for failure to file within that time. 

Can I file a motion to recuse my Judge?

You can always file a motion to recuse, but just because you can do something does not make it good idea. Do you really feel a new Judge will rule differently? Have you consulted a local attorney to get an unbiased opinion as to whether you have legitimate grounds to file such a motion? Just because you feel your Judge does not agree with your perspective on a case does not mean another Judge will see things any differently. Sometimes the Judge is not on your side and sometimes the law is not on your side- speak with an attorney for clarity on this distinction as it applies to your particular case before filing a motion to disqualify a Judge.

Should I file a motion to recuse my Judge?

An unfounded motion can result in sanctions for the moving party pursuant to Rule 11. The motion may also further prejudice your Judge against you. Bottom line- don’t file a motion to remove a Judge if you don’t think you have a decent chance of success.

How do I file a motion to recuse my Judge?

​The criminal statute NCGS 15A-1223 provides that a party’s motion to disqualify a judge must be submitted in writing, must have supporting affidavits, and must be filed at least five days before the trial unless there is good cause for delay. The Code of Judicial Conduct gives no specific advice regarding Civil cases, but a written detailed motion filed earlier rather than later would be prudent.

Will a different Judge hear my motion to recuse?

​If your motion is vague or does not have specific allegations that would require recusal even if true the same Judge may simply deny your motion. If the specific allegations in the motion should result in disqualification then a new Judge should hear the motion to recuse.