By Jedidiah McKeehan
From time to time I will have someone come and consult with me on a case after they have already been in front of the judge a time or two, and they will ask if they can get a new judge on their case because they feel like the judge has it out for them.
My answer is usually, “No, you are not getting a new judge,” or occasionally, “It is extremely unlikely that you are getting a new judge on your case.”
Why do I say that? Well the law presumes that a judge is competent to hear all cases that come before them. Tennessee Code Annotated section 17-2-101 lays out when a judge is considered “incompetent” to hear a case and it states that, “no judge shall be competent, except by consent of all parties to sit in the following cases…”
Weird terminology, but a judge is deemed to be incompetent, and not able to hear a case if the judge is: interested in the events of a case; when the judge is connected with either party; when the judge has been of counsel in the case previously; when the judge heard this case at a lower court; or in a criminal case, where a felony has been committed against someone connected to the judge.
So, there is a lot there, but I would preach a practical approach. If a judge is somehow connected to someone involved in the case, you may be able to get them removed, but if that is not the case, it is unlikely you will get the judge removed. If you think the judge is biased against you, that is simply not a basis for getting a judge removed from your case. If your case is in a small county where everyone knows everyone and the other attorney is buddies with the judge, again, that is not a basis for getting the judge removed from your case. I am sorry, it’s just not, unless you can show some extreme bias or prejudice that is not present in your typical case.
There are other reasons to get a judge removed from your case, but the ones above are the ones that are typically encountered.
If one of those conditions, however, does exist, then the judge should recuse themselves from the case, and ask a different judge to hear the case. Usually the judges will do this voluntarily. Judges are just like everyone else, they do not have any great desire to do extra work, and if there is a hint of impropriety associated with them hearing a case, then they are usually happy to step back from a case and have some other judge hear it.
However, if a judge does not recuse themselves when you think that they should, you can file a motion and ask the judge to recuse themselves. Most attorneys do not want to file a motion asking for a judge to recuse themselves because the attorney may believe that the judge will remember that and hold it against them.
However, if that kind of motion does get filed, then the judge himself will be the one deciding whether they should recuse themselves. That can put you in a tough situation. You may very well file a motion saying all of these terrible things about a judge and asking them to recuse themselves and then they decline to recuse themselves and they decide to remain the judge on your case. Yikes! I am not saying the judge will not continue to be impartial, but I am sure they judge will not be sending you Christmas cards any time soon.
So, can you get a new judge on your case? Yes, it is possible, but it is unlikely, and probably not worth attempting to make happen.
Jedidiah McKeehan is an attorney practicing in Knox County and surrounding counties. He works in many areas, including criminal, personal injury, landlord-tenant, probate, and estate planning. Visit attorney-knoxville.com for more information about this legal issue and other legal issues.