Most domestic cases in Georgia are tried without juries, and all custody matters are determined by judges alone. As might be expected, a party suffering adverse rulings at times feels victim of unfair bias by the trial judge. In such instance, does the party have any recourse? Can the party force the assigned judge to step aside and turn the case over to another?
A request that a judge recuse himself/herself in a case on the basis of bias arises from Canon 2, Rule 2.11(A)(1) of the Georgia Code of Judicial Conduct, which provides that “Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, or in which: The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning an impending matter or a pending proceeding.”
In order to seek a judge’s recusal, a party must file a motion supported by affidavit, ordinarily not later than five days after the affiant first learned of the alleged grounds for disqualification and not later than ten days prior to the hearing or trial which is the subject of recusal or disqualification.(1) The affidavit must “clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra judicial conduct or statements, which demonstrate either bias in favor of any adverse party, or prejudice toward the moving party in particular, or a systematic pattern of prejudicial conduct toward persons similarly situated to the moving party, which would influence the judge and impede or prevent impartiality in that action. Allegations consisting of bare conclusions and opinions shall not be legally sufficient to support the motion or warrant further proceedings.”(2)
Critically, a party cannot base a motion to recuse on the judge’s adverse factual and legal rulings in the case itself, because the alleged bias must stem from an extrajudicial source and result in an opinion based on something other than what the judge learned from participation in the case.(3) The trial judge reviewing the motion must “determine whether, assuming the truth of the facts alleged, a reasonable person might conclude that the judge harbors bias, stemming from an extrajudicial source, which is of a nature and intensity as would interfere with the exercise of impartial judgment.”(4)
Upon the filing of a motion to recuse, supported by an accompanying affidavit, the trial judge must “temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted. If it is found that the motion is timely, the affidavit sufficient and that recusal would be authorized if some or all of the facts set forth in the affidavit are true, another judge shall be assigned to hear the motion to recuse…”(5) If the trial judge finds that any of those three conditions are not met, he must deny the motion on its face as insufficient, without the need to assign the motion to another judge to hear.(6)
If the motion is assigned to another judge, the assigned judge “may consider the motion solely upon the affidavits, but may, in the exercise of discretion, convene an evidentiary hearing. After consideration of the evidence, the judge assigned shall rule on the merits of the motion and shall make written findings and conclusions.”(7)
(1) Uniform Superior Court Rule 25.1. (2) Uniform Superior Court Rule 25.2. (3) See Mondy v. Magnolia Advanced Materials, Inc., 815 S.E.2d 70, 82 (Ga. 2018); In re JET, 269 Ga.App. 567, 571, 604 S.E.2d 623 (2004). (4) JET, supra, 269 Ga.App. at 571. (5) Uniform Superior Court Rule 25.3. (6) Dodson v. Dean, 256 Ga.App. 4, 6, 567 S.E.2d 348 (2002). (7) Uniform Superior Court Rule 25.6.