ORS 14.260¹
Affidavit and motion for change of judge
  • time for making
  • limit of two changes of judge

(1) Any party to or any attorney appearing in any cause, matter or proceeding in a circuit court may establish the belief described in ORS 14.250 (Disqualification of judge) by motion supported by affidavit that the party or attorney believes that the party or attorney cannot have a fair and impartial trial or hearing before the judge, and that it is made in good faith and not for the purpose of delay. No specific grounds for the belief need be alleged. The motion shall be allowed unless the judge moved against, or the presiding judge for the judicial district, challenges the good faith of the affiant and sets forth the basis of the challenge. In the event of a challenge, a hearing shall be held before a disinterested judge. The burden of proof is on the challenging judge to establish that the motion was made in bad faith or for the purposes of delay.

(2) The affidavit shall be filed with the motion at any time prior to final determination of the cause, matter or proceedings in uncontested cases, and in contested cases before or within five days after the cause, matter or proceeding is at issue upon a question of fact or within 10 days after the assignment, appointment and qualification or election and assumption of office of another judge to preside over the cause, matter or proceeding.

(3) A motion to disqualify a judge may not be made after the judge has ruled upon any petition, demurrer or motion other than a motion to extend time in the cause, matter or proceeding. A motion to disqualify a judge or a judge pro tem, assigned by the Chief Justice of the Supreme Court to serve in a county other than the county in which the judge or judge pro tem resides may not be filed more than five days after the party or attorney appearing in the cause receives notice of the assignment.

(4) In judicial districts having a population of 200,000 or more, the affidavit and motion for change of judge shall be made at the time and in the manner prescribed in ORS 14.270 (Time of making motion for change of judge in certain circumstances).

(5) In judicial districts having a population of 100,000 or more, but less than 200,000, the affidavit and motion for change of judge shall be made at the time and in the manner prescribed in ORS 14.270 (Time of making motion for change of judge in certain circumstances) unless the circuit court makes local rules under ORS 3.220 (Rules) adopting the procedure described in this section.

(6) A party or attorney may not make more than two applications in any cause, matter or proceeding under this section. [1955 c.408 §1(2); 1959 c.667 §1; 1981 c.215 §6; 1987 c.338 §2; 1995 c.781 §29; 2015 c.272 §1]

Notes of Decisions

Plaintiff’s affidavit was insufficient for failure to state that the mo­tion was made in good faith, even though the mo­tion itself contained such a state­ment. State ex rel Yraguen v. Dorroh, 270 Or 834, 530 P2d 29 (1974)

Upon filing of mo­tion for change, supported by proper affidavit, judge must either withdraw or request a “good faith hearing.” State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

Mo­tion for change of judge, if in good faith, cannot be denied because of pre­vi­ous abuse. State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

Affidavit need not state specific facts. State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

Affidavit by attorney is sufficient without affidavit by client. State ex rel Strain v. Foster, 272 Or 464, 537 P2d 547 (1975)

Defendant’s oral mo­tion, seeking disqualifica­tion of judge because defendant had recently filed federal suit against judge, was insufficient where no affidavit of prejudice was filed. State v. Meyer, 31 Or App 775, 571 P2d 550 (1977)

Judge who is actually or apparently biased must disqualify himself from post-trial contempt pro­ceed­ings. State v. Meyer, 31 Or App 775, 571 P2d 550 (1977)

Mo­tion for peremptory disqualifica­tion of judge was not timely under this sec­tion where judge had heard trial on peti­tion for dissolu­tion and rendered decree. Deffenbaugh and Deffenbaugh, 35 Or App 683, 582 P2d 470 (1978), as modified by 286 Or 759, 596 P2d 966 (1979)

Under this sec­tion, case is “pending” before judge from date cita­tion to appear is filed; where defendant’s mo­tion to disqualify judge was filed more than five days after cita­tion was issued, mo­tion was untimely even though identity of specific judge was not known to defendant. State v. Hilborn, 299 Or 608, 705 P2d 192 (1985)

Judge-disqualifica­tion pro­vi­sions in ORS 14.250 (Disqualification of judge) and this sec­tion do not impermissibly interfere with judiciary. State ex rel Ray Wells, Inc., v. Hargreaves, 306 Or 610, 761 P2d 1306 (1988)

Where affidavits supporting mo­tions to disqualify judge failed to assert that they were not for purpose of delay, they did not meet statutory require­ment and were insufficient. State ex rel Exe v. Hargreaves, 306 Or 626, 761 P2d 1314 (1988)

Whether case is “contested” or “uncontested” and whether case is “at issue” depends upon posture of particular case, not on type of pro­ceed­ing. State ex rel Hopkins v. Schenck, 313 Or 529, 836 P2d 721 (1992)

In hearing on mo­tion to disqualify judge, proper inquiry is belief of moving party in fairness and impartiality of judge, not actual fairness or impartiality. State ex rel Kafoury v. Jones, 315 Or 201, 843 P2d 932 (1992)

Challenged judge must prove that moving party made mo­tion in bad faith or for purposes of delay. State ex rel Kafoury v. Jones, 315 Or 201, 843 P2d 932 (1992)

Statutory scheme to disqualify judge includes require­ment of ra­tionality. State ex rel Kafoury v. Jones, 315 Or 201, 843 P2d 932 (1992)

Party is considered “appearing” for purposes of judicial disqualifica­tion under this sec­tion and ORS 14.250 (Disqualification of judge) when party submits matter to trial court for decision. Voth v. Snake River Correc­tional Institu­tion, 171 Or App 392, 15 P3d 629 (2000)

Law Review Cita­tions

68 OLR 217 (1989)

Notes of Decisions

These sec­tions deal with matters different from those governed by Article VII (Amended), sec­tion 8 of the state constitu­tion, and were not repealed by adop­tion of that pro­vi­sion. State ex rel Oliver v. Crookham, 302 Or 533, 731 P2d 1018 (1987)

An affidavit supporting mo­tion to recuse judge under these sec­tions must allege circumstances which would permit party or attorney reasonably to believe that party or attorney will not receive fair trial. State ex rel Oliver v. Crookham, 302 Or 533, 731 P2d 1018 (1987)

“Prejudice” as used in these sec­tions cannot be read so broadly as to subsume any views as to judge’s judicial competency. State ex rel Bowman v. Crookham, 302 Or 544, 731 P2d 1025 (1987)

Where affidavit in support of relator’s mo­tion for change of judge recited that judge is oriented towards pros­e­cu­­tion and that crim­i­nal defendants cannot get fair trial in his court, allega­tions were sufficient to require hearing to determine if relator had good faith belief that she could not obtain fair trial. State ex rel Bowman v. Crookham, 302 Or 544, 731 P2d 1025 (1987)

Where judge took af­firm­a­tive ac­tion to publicize dispute between judge and attorney, cumulative effect of dispute and judge’s reac­tion weighed in favor of recusal in unrelated case. In re Schenck, 318 Or 402, 870 P2d 185 (1994)

1 Legislative Counsel Committee, CHAPTER 14—Jurisdiction; Venue; Change of Judge, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors014.­html (2019) (last ac­cessed May 16, 2020).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 14, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano014.­html (2019) (last ac­cessed May 16, 2020).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information