Once you receive notice of which judge has been assigned to your case, you have ten days to file a notice to remove that judge and serve the notice on the opposing party. This timeline can be found in Minnesota Rule of Civil Procedure 63.03. After the removal is filed, a new judge will be appointed to preside over the case. Each party has the right to remove one judge within that ten day window, no questions asked. However, removing the replacement judge, or removing a judge after the ten day window is very difficult. Rule 63.03 states:
“After a party has once disqualified a presiding judge or judicial officer as a matter of right that party may disqualify the substitute judge or judicial officer, but only by making an affirmative showing of prejudice. A showing that the judge or judicial officer might be excluded for bias from acting as a juror in the matter constitutes an affirmative showing of prejudice.”
As you can see, in order to remove a second judge, you would have to show that the second judge is prejudiced. This is done by filing a removal motion which would contain an affidavit explaining the basis for believing that the judge is prejudiced. The decision of whether to grant a removal motion is within a judge’s discretion. Matson v. Matson, 638 N.W.2d 462, 469 (Minn. App. 2002).
Many things judges do that feel like bias cannot be used to show prejudice. For example, the fact that a judge has previously ruled against a party in an earlier proceeding is not a basis for finding that the judge is prejudiced. Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986). Even if a judge makes negative statements about a party, that does not necessarily demonstrate bias. See In re Marriage of Geske v. Marcolina, No. A04-1773 (Minn. App. July 26, 2005) (holding that no bias was shown where the district court stated that a party was “angry and argumentative.”). A party seeking to remove a judge for prejudice must be able to point to actual, concrete facts which demonstrate that the judge is unable to make fair and impartial decisions.
It should also be noted that Rule 63.03 prohibits a party from filing a notice to remove against a judge who has already presided over a proceeding in the case. The Rule states:
“No such notice [a notice to remove] may be filed by a party or party’s attorney against a judge or judicial officer who has presided at a motion or any other proceeding of which the party had notice…A judge or judicial officer who has presided at a motion or other proceeding…may not be removed except upon an affirmative showing of prejudice on the part of the judge or judicial officer.”
Accordingly, as soon as a judge presides over any proceeding in your case, you are probably in the situation of needing to establish prejudice in order to get the judge removed.
If you have want to remove a judge from your case, it is best to act before the judge has presided over a proceeding, and within ten days of receiving notice that the judge has been assigned to your case. After either of those have passed, getting a judge removed becomes much more difficult.