Judical Code

Judicial Code

Rule 36: Disability or Disqualification of a Judge

(a) If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the Court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then the Chief Judge shall assign any other judge regularly sitting in or assigned to the Court to perform those duties; but if such assigned judge is satisfied that she/he cannot perform those duties because she/he did not preside at the trial or for any other reason, she/he may in her/his discretion grant a new trial.

(b) Whenever a party to any action or proceedings, civil or criminal, or her/his attorney shall make and file an affidavit that the judge before whom such action or proceedings is to be tried or heard has a bias or prejudice, pursuant to Title 1, Chapter 3, Section 7, either against such party or her/his attorney or in favor of any opposite party to the suit, such judge shall proceed no further therein, except to call in another judge to hear and determine the matter unless subsection (c) is invoked.

(c) Every such affidavit shall comply with Title 1, Chapter III, Section 7 of the Prairie Island Mdewakanton Dakota Judicial Code and shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed as soon as practicable after the case has been assigned or such bias or prejudice is known. If the judge against whom the affidavit is directed questions the sufficiency of the affidavit, she/he shall enter an order directing that a copy thereof be forthwith certified to another judge (naming her/him), which judge shall then pass upon the legal sufficiency of the affidavit. If the judge against whom the affidavit is directed does not question the legal sufficiency of the affidavit, or if the judge to whom the affidavit is certified finds that it is legally sufficient, another judge must be called in to try the case or determine the matter in question. No such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith.

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