Substitution (law)
Encyclopedia
In legal terms, the Right of Substitution is a statutory right of all parties except the State
. It is the right to change the presiding court official
with or without cause
.
Judges are usually given cases randomly within a jurisdiction
(unless there is only one judge in a jurisdiction, in which case they receive all cases). The Right of Substitution does not give a litigant the right to choose a judge, just the random selection of another judge in the jurisdiction. If the right is exercised in a jurisdiction with one judge usually a judge from a neighboring jurisdiction will take the case, although on occasion a Reserve Judge
or Commissioner
may be used.
and juvenile defendants and all parties in a civil action. Substitution for cause can be for any bias a judge may have in the case, such as an association with a party (family, friendship or even stock ownership), having made vocal comments in the past on the topic at trial, etc. See Recusal
.
The right of substitution with cause does not have a limitation on the number of times it may be called for, such that parties may exercise the right until they find a neutral judge. Substitution with cause may be moved for at any time after a party realizes a bias exists. However many jurisdictions require the right be exercised within a certain time after the bias has been discovered by a party or else the right will be waived
, often 30-60 days.
This right rarely must be exercised by parties as judges will usually raise the bias sua sponte
and recuse
themself from a case before a party may even have known of the conflict of interest
.
. It is not common outside the United States
. This right may only be used once per case whereas the right of substitution for cause may be used until a neutral judge can be found.
Substitution without cause must be moved for
prior to the first order by a judge. It can therefore be moved for in civil court
after complaint
s and answer
s have been filed but prior to the first order, often a scheduling order for discovery
procedure
. In criminal or juvenile courts the right may be exercised after arraignment
or indictment
but before a preliminary hearing
. Sometimes the motion must be made a certain number of days before the "prelim" or scheduling order is held.
Sovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
. It is the right to change the presiding court official
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
with or without cause
Bias
Bias is an inclination to present or hold a partial perspective at the expense of alternatives. Bias can come in many forms.-In judgement and decision making:...
.
Judges are usually given cases randomly within a jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
(unless there is only one judge in a jurisdiction, in which case they receive all cases). The Right of Substitution does not give a litigant the right to choose a judge, just the random selection of another judge in the jurisdiction. If the right is exercised in a jurisdiction with one judge usually a judge from a neighboring jurisdiction will take the case, although on occasion a Reserve Judge
Reserve Judge
A Reserve Judge is a formerly elected judge or, on occasion, an appointed official that offers their services as a substitute judge when required...
or Commissioner
Commissioner
Commissioner is in principle the title given to a member of a commission or to an individual who has been given a commission ....
may be used.
Right of Substitution with Cause
The Right of Substitution, where applicable, may be exercised by criminalCriminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
and juvenile defendants and all parties in a civil action. Substitution for cause can be for any bias a judge may have in the case, such as an association with a party (family, friendship or even stock ownership), having made vocal comments in the past on the topic at trial, etc. See Recusal
Recusal
Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer. Applicable statutes or canons of ethics may provide...
.
The right of substitution with cause does not have a limitation on the number of times it may be called for, such that parties may exercise the right until they find a neutral judge. Substitution with cause may be moved for at any time after a party realizes a bias exists. However many jurisdictions require the right be exercised within a certain time after the bias has been discovered by a party or else the right will be waived
Waiver
A waiver is the voluntary relinquishment or surrender of some known right or privilege.While a waiver is often in writing, sometimes a person's actions can act as a waiver. An example of a written waiver is a disclaimer, which becomes a waiver when accepted...
, often 30-60 days.
This right rarely must be exercised by parties as judges will usually raise the bias sua sponte
Sua sponte
In law, sua sponte describes an act of authority taken without formal prompting from another party. The term is usually applied to actions by a judge taken without a prior motion or request from the parties...
and recuse
Recusal
Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer. Applicable statutes or canons of ethics may provide...
themself from a case before a party may even have known of the conflict of interest
Conflict of interest
A conflict of interest occurs when an individual or organization is involved in multiple interests, one of which could possibly corrupt the motivation for an act in the other....
.
Right of Substitution without Cause
The Right of Substitution without cause is only applicable in some US States and not in the Federal Court SystemUnited States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
. It is not common outside the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
. This right may only be used once per case whereas the right of substitution for cause may be used until a neutral judge can be found.
Substitution without cause must be moved for
Motion (legal)
In law, a motion is a procedural device to bring a limited, contested issue before a court for decision. A motion may be thought of as a request to the judge to make a decision about the case. Motions may be made at any point in administrative, criminal or civil proceedings, although that right is...
prior to the first order by a judge. It can therefore be moved for in civil court
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
after complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
s and answer
Answer
Generally, an answer is a reply to a question or is a solution, a retaliation, or a response that is relevant to the said question.In law, an answer was originally a solemn assertion in opposition to some one or something, and thus generally any counter-statement or defense, a reply to a question...
s have been filed but prior to the first order, often a scheduling order for discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
procedure
Civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits...
. In criminal or juvenile courts the right may be exercised after arraignment
Arraignment
Arraignment is a formal reading of a criminal complaint in the presence of the defendant to inform the defendant of the charges against him or her. In response to arraignment, the accused is expected to enter a plea...
or indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...
but before a preliminary hearing
Preliminary hearing
Within some criminal justice systems, a preliminary hearing is a proceeding, after a criminal complaint has been filed by the prosecutor, to determine whether there is enough evidence to require a trial...
. Sometimes the motion must be made a certain number of days before the "prelim" or scheduling order is held.