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20-311d. Change of judge; procedure; grounds. (a) If a party or a party's attorney believes that the judge to whom an action is assigned cannot afford that party a fair trial in the action, the party or attorney may file a motion for change of judge. The motion shall not state the grounds for the party's or attorney's belief. The judge shall promptly hear the motion informally upon reasonable notice to all parties who have appeared in the case. If the judge disqualifies the judge's self, the action shall be assigned to another judge by the chief judge. If the judge refuses to disqualify the judge's self, the party seeking a change of judge may file the affidavit provided for in subsection (b). If an affidavit is to be filed it shall be filed immediately.

(b) If a party or a party's attorney files an affidavit alleging any of the grounds specified in subsection (c), the chief judge shall at once determine, or refer the affidavit to another district judge for prompt determination of, the legal sufficiency of the affidavit. If the affidavit is filed in a district court in which there is no other judge who is qualified to hear the matter, the chief judge shall at once notify the departmental justice for the district and request the appointment of another district judge to determine the legal sufficiency of the affidavit. If the affidavit is found to be legally sufficient, the case shall be assigned to another judge.

(c) Grounds which may be alleged as provided in subsection (b) for change of judge are that:

(1) The judge has been engaged as counsel in the action prior to the appointment or election as judge.

(2) The judge is otherwise interested in the action.

(3) The judge is related to either party to the action.

(4) The judge is a material witness in the action.

(5) The party or the party's attorney filing the affidavit has cause to believe and does believe that on account of the personal bias, prejudice or interest of the judge such party cannot obtain a fair and impartial trial or fair and impartial enforcement of post-judgment remedies. Such affidavit shall state the facts and the reasons for the belief that bias, prejudice or an interest exists.

(d) In any affidavit filed pursuant to this section, the recital of previous rulings or decisions by the judge on legal issues or concerning the legal sufficiency of any prior affidavits filed by counsel for a party in any judicial proceeding, or filed by such counsel's law firm, pursuant to this section, shall not be deemed legally sufficient for any belief that bias or prejudice exists.

History: L. 1971, ch. 198, § 3; L. 1972, ch. 97, § 1; L. 1973, ch. 130, § 1; L. 1978, ch. 110, § 1; L. 1985, ch. 104, § 1; L. 1986, ch. 115, § 34; L. 1999, ch. 57, § 15; July 1.

Cross References to Related Sections:

Change of judge due to death, sickness or other disability, see 60-263.

Change of venue for reason other than disqualification of judge, see 60-609.

Law Review and Bar Journal References:

"1971 Legislative Synopsis," Robert F. Bennett, 40 J.B.A.K. 307, 310 (1971).

Use of "prejudice affidavit" limited under 1972 amendment, Robert F. Bennett, 41 J.B.A.K. 7, 53 (1972).

Judicial disqualification, 13 W.L.J. 431, 432, 438, 440, 442, 443, 444, 445 (1974).

"A Change of Judge," Christopher F. Burger, J.K.T.L.A. Vol. 29, No. 2, 12 (2005).

"Making the Most Out of the Cap: Maximizing Non-Economic Damages," Bradley J. Prochaska, J.K.T.L.A. Vol. 29, No. 6, 8 (2006).

CASE ANNOTATIONS

1. Comprehensive review and analysis of provisions of act; basis and procedure for disqualifying judge; constitutionality. Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541.

2. Affidavit filed against administrative judge on assignment of case for trial on merits to another judge does not automatically procure a continuance. Collins v. Kansas Milling Co., 210 Kan. 701, 704, 504 P.2d 586 (1972).

3. Document simply acknowledged before notary public not affidavit; insufficient to invoke section. State v. Knight, 219 Kan. 863, 867, 549 P.2d 1397.

4. Transfer of action to administrative judge for determination of affidavits' sufficiency met statutory requirements. Oswald v. State, 221 Kan. 625, 627, 628, 561 P.2d 838.

5. Petitioner's only reason stated for securing change of judge legally insufficient. Schoonover v. State, 2 Kan. App. 2d 481, 483, 582 P.2d 292.

6. Cited; upon the filing of an affidavit of prejudice, transfer of the case to another judge is automatic. City of Neodesha v. Knight, 226 Kan. 416, 418, 601 P.2d 669.

7. Where statutory and case law procedures followed, defendant found to have received fair trial. State v. McCowan, 226 Kan. 752, 761, 602 P.2d 1363.

8. Cited; no error in ruling that affidavit of bias or prejudice in medical malpractice action was insufficient; affirmed. Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 310, 607 P.2d 1339.

9. Discussed in upholding failure to disqualify trial judge for alleged personal bias and prejudice. State v. Foy, 227 Kan. 405, 410, 411, 607 P.2d 481.

10. Recitation in affidavit of adverse rulings made during prior proceedings not sufficient to require disqualification of judge. State ex rel. Miller v. Richardson, 229 Kan. 234, 238, 623 P.2d 1317.

11. Trial judge not automatically disqualified because son member of prosecutor's staff. State v. Logan, 236 Kan. 79, 85, 689 P.2d 778 (1984).

12. Filing of affidavit of prejudice on afternoon preceding sentencing amounts to waiver of question. State v. Snedecor, 9 Kan. App. 2d 454, 458, 680 P.2d 563 (1984).

13. Proceeding under K.S.A. 60-1507; propriety of sentencing judge's ex parte communication with penitentiary following vacation of one of multiple sentences discussed. Niblock v. State, 11 Kan. App. 2d 30, 31, 711 P.2d 771 (1985).

14. Cited; refusal of judge who did not preside at trial examined. State v. Ruebke, 240 Kan. 493, 501, 731 P.2d 842 (1987).

15. Basis and standard to be applied in determining bias of judge. State v. Griffin, 241 Kan. 68, 72, 734 P.2d 1089 (1987).

16. Cited; judicial conduct supporting censure proceedings, fair sentencing proceedings, sentencing guidelines examined. State v. Lake, 12 Kan. App. 2d 275, 281, 740 P.2d 106 (1987).

17. Cited; objections to rulings or decisions during suppression hearing as legally insufficient to show prejudice examined. State v. Strayer, 242 Kan. 618, 625, 750 P.2d 390 (1988).

18. Absent affidavit under (b), filing of motion for judge recusal does not require consideration by another judge. Eferakeya v. Twin City State Bank, 13 Kan. App. 2d 197, 200 766 P.2d 837 (1989).

19. Facts and reasons in affidavit sufficient to give fair support to belief that defendant cannot receive fair trial examined. State v. Goss, 245 Kan. 189, 197, 777 P.2d 781 (1989).

20. Denial of request for change of judge affirmed under facts stated. Grove v. Orkin Exterminating Co., 18 Kan. App. 2d 369, 377, 855 P.2d 958 (1993).

21. Cited; whether judge who cited newspaper for contempt should recuse from contempt hearing examined. State v. Alston, 256 Kan. 571, 575, 887 P.2d 681 (1994).

22. Whether administrative judge erred by holding affidavit supporting request for change of judge was insufficient examined. State v. Clothier, 20 Kan. App. 2d 994, 997, 894 P.2d 257 (1995).

23. Under facts, failure of defense to file motion for judge's recusal at trial did not render issue unappealable. State v. Alderson, 260 Kan. 445, 452, 922 P.2d 435 (1996).

24. Trial court's denial of motion for change of judge based on legal insufficiency of affidavit upheld. St. David's Episcopal Church v. Westboro Baptist Church, Inc., 22 Kan. App. 2d 537, 554, 921 P.2d 821 (1996).

25. Record failed to establish personal bias, prejudice or interest; not legally sufficient to support disqualification of judge. Smith v. Printup, 262 Kan. 587, 605, 938 P.2d 1261 (1997).

26. Affidavit arguing judge already decided all crucial issues in prior hearing insufficient for disqualification. Logan v. Logan, 23 Kan. App. 2d 920, 931, 937 P.2d 967 (1997).

27. Motion for change of judge not timely filed and failure thereof bars issue on appeal. State v. Brown, 266 Kan. 563, 569, 973 P.2d 773 (1999).

28. Denial of defendant's motion to change judge did not violate due process because defendant failed to demonstrate actual bias or prejudice by the judge. State v. Reed, 282 Kan. 272, 277, 144 P.3d 677 (2006).

29. No reversible error, defendant failed to show judge exhibited actual bias or prejudice. State v. Walker, 283 Kan. 587, 609, 153 P.3d 1257 (2007).

30. Cited; district court did not err in denying request for change of judge. State v. Sappington, 285 Kan. 176, 169 P.3d 1107 (2007).

31. The district judge's recusal is not required based on insufficient allegations of bias or prejudice. State v. Hurd, 298 Kan. 555, 316 P.3d 696 (2013).

32. Motion for change of judge was not timely filed and issue was therefore barred on appeal. State v. Moyer, 302 Kan. 892, 922, 360 P.3d 384 (2015).


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