24 January 2004

Substituting Judges

There has been some surprise and dismay expressed that California state courts allow peremptory challenges against judges.

It stands to reason, I suppose, that the fairness-and-appearance-of-fairness principle that supports the institution of peremptory challenges against jurors would also apply to the other arbiter in the courtroom, the judge. On the other hand, though, it does not seem unreasonable to approach judges with a stronger presumption of impartiality than we do jurors. And I think we worry about the partiality of jurors mostly because they are finding facts rather than making legal judgments. Fact-finding, it seems to me, allows somewhat more play for subtle life-experience biases than does making rulings of law. For those reasons, I guess, it seems to me that there'd be a pretty strong argument that peremptories against judges are unnecessary, and perhaps unwise (in the sense that they might contribute to a general public perception of judges as unreliable).

Eric Muller, "Peremptory Challenges Against Judges!" (23 Jan. 04).

I cannot agree. First of all, it's not that unusual.

A substitution of judge in any civil action may be had in the following situations:…
(2) Substitution as of right. When a party timely exercises his or her right to a substitution without cause as provided in this paragraph (2).
   (i) Each party shall be entitled to one substitution of judge without cause as a matter of right.
   (ii) An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties.
   (iii) If any party has not entered an appearance in the case and has not been found in default, rulings in the case by the judge on any substantial issue before the party's appearance shall not be grounds for denying an otherwise timely application for substitution of judge as of right by the party.

735 Ill. Comp. Stat. 5/2-1001(a) (emphasis added).

Perhaps I am too cynical; I prefer to think of it as being "realist." This state elects all of its judges. They are intensely political creatures, and all too often partisan creatures. (Fortunately, I do not ordinarily appear in the courts in this state.) I believe that limited peremptory challenges to judges, at least in civil matters, are a necessary price and consequence of electing judges. Many of the judges make every real effort to be unbiased, impartial jurists. Too many do not; and, due to quirks in our civil rules, we have a much higher proportion of bench trials here in Illinois than in most states for those matters that get to trial.

My simple solution to this seeming iniquity is to eliminate election of the judiciary. But that is for another time, and for a much longer article.