An Examination of the Judicial Peremptory Challenge: Variations between States and Considerations of Constitutionality

Seventeen states allow for a judicial peremptory challenge of a trial judge. Seven of these states require that a new judge be assigned to the case without any showing of bias, prejudice or impartiality. The remaining ten states require some showing, primarily through an affidavit or certification, which meets requirements set forth by the statute or rule. Distinctions between the various challenge procedures were examined. State jurisprudence addressing the competing constitutional principles of maintaining a litigant’s right to a fair and impartial tribunal and the presumption of a trial judge’s impartiality was examined within the context of the doctrine of separation of powers, improper delegation of judicial power, and analogies to the peremptory strike of a juror. Having found no constitutional infirmities, except perhaps under circumstances unique to the evolution of a state’s particular rule or statute, the decision of whether to remove by a peremptory challenge a presumptively impartial judge should be left to the policy branch of government—the legislature