A.    Judicial Disqualification

As we have explained throughout this guide, members of antigovernment groups, militias and common law courts very frequently attempt to disrupt state court proceedings to which they or their comrades are a party. Our research has shown that they try to delay the course of proceedings, frustrate judges and judiciary staff and otherwise delay proceedings almost as a matter of course. A very effective, and to the court, potentially dangerous, method of accomplishing these ends is to file complaints against a judge.

These parties can file complaints which fall into one of two categories: either the litigant conjures some personal grievance and sues the judge, thus making him an "interested" party, or the person follows the typical complaint route and files whatever kind of general grievance or motion state process allows. Note that the first category, adversarial complaints against the judge, could fall into one of two classes - the complaint could be filed pursuant to a legitimate cause of action (though one without basis in fact) in a state court, or it could be pursuant to an unfamiliar cause of action and filed in a common law court. Obviously, complaints filed in common law courts have no real bearing on the state process, but they are, however, grounds for continued and more severe action in the common law courts. Complaints filed in state courts, however, present a different story. These complaints are legitimate until ruled otherwise, so a judge must proceed with caution.

The second category of complaint is the typical motion for recusal or disqualification. Presuming the member is familiar with or has retained counsel that is familiar with state law, it is likely that they will pursue the typical state remedy in the proper manner. These motions succeed in varying degrees, with the rate of success depending on the state. At this time, approximately fifteen states allow parties to peremptorily challenge judges and ask for their removal.[8] Proceedings involving members of antigovernment groups have seen peremptory actions in many of the states that allow these challenges. On the other hand, the majority of states require a showing of cause for removal or disqualification. Rest assured that members of these groups will find cause sufficient to bring a motion under the appropriate statute.

B.    Typical Responses to Judicial Disqualification or Recusal

The judicial responses differ according to the laws of the particular state. These responses depend, in large part, upon statutory provisions governing disqualification and recusal, as well as state codes of judicial conduct, constitutional requirements and common law developments. In addition to the particular responses addressed below, it is imperative that judges do not "take personally" these challenges. They are often merely a part of groups' tactics and are meant to harm the process, not the judge. As with all suggested or typical responses, courtesy is urged - for slights against the members will be counterproductive and harm the integrity and efficiency of your court.

1.    Responses to Typical Motions for Recusal/Disqualification

a.       States That Allow Peremptory Challenges - In these states, there is often a combination of rules that govern the procedure surrounding a challenge.[9] Judges should ensure that members follow the proper procedures and that all documents are in order. This is, of course, a matter of integrity of the judiciary - to require proper procedure in all cases - but in the antigovemment context it is also a matter of deterrence. It may be understood that the members will use these challenges in a frivolous way, but without any evidence of frivolity. Therefore, they should be made to strictly comply with the procedural requirements.

b.        States Which Allow Removal For Cause - Here, an entirely different type of response controls. Unlike the constitutional or-statutory peremptory, these challenges do not imply a right in the party seeking them unless the party makes the proper showing of cause. Again, the first and foremost response must be to retain judicial bearing and courtesy. Unlike the category above, however, judges have more control here, mainly because parties who bring this type of action bear the ultimate burden of showing cause. The courts should treat motions from members of the antigovernment groups like those from any other movement, and require strict adherence to the procedure and burdens the law imposes.[10]

2.     Responses to Civil Actions Filed Against Presiding Judge - This tactic is discussed throughout, for members of these movements seem to repeatedly use the courts to redress their grievances - real or imagined. The response to this tactic depends on what type of action is filed. For actions filed in the common law courts themselves, judges should be aware that, while the action threatens no legal liability, the penalty may be a bogus lien, involuntary bankruptcy or other censure of the offending judge. For any action taken by a member against a judge, the first step should be to notify court security and the authority in the executive branch. The judge should also consult legal counsel in order to determine the complaint's validity and strategize individual responses. Again, we stress that this should not become personal - the attack is against authority and the system, generally not against the individual judge.