Rule 40.Disqualification

Title VI: Alternative Dispute Resolution and Trial · Last amended July 1, 2024 · Last verified July 14, 2026

In one sentenceRule 40 gives each party in a civil case one automatic disqualification of the assigned judge without stating a reason, on a tight deadline, and separately allows disqualification for cause -- bias, a conflict, or a prior role in the case -- shown by affidavit.

Full Text of Rule 40

Text sizeJump to: (a) (b) (c) (d)

(a) Disqualification without cause. In all civil actions and petitions for judicial review, each party has the right to file one motion for disqualification of the judge, which does not require the statement of any grounds, under the following conditions and procedures:

(1) Time for filing. The motion must be filed not later than 7 days after service of a written notice or order setting the action for status conference, pretrial conference, trial or for hearing on the first contested motion, or not later than 21 days after service or receipt of a complaint, summons, order or other pleading indicating or specifying who the presiding judge to the action will be, whichever occurs first. The motion must also be filed before the judge sought to be disqualified has presided over a status conference, a pretrial conference, a contested proceeding or trial.

(2) Multiple parties. If there are multiple co-parties, the trial court must determine whether the co-parties have sufficient interest in common so as to be required to join in a disqualification without cause, or whether they have an adverse interest such that each co-party is entitled to file one motion for disqualification without cause.

(3) New parties. If a new party is joined in an action after the time for disqualification without cause of the presiding judge has passed, the new party may file a motion for disqualification without cause within 14 days after that party's first appearance or 14 days after that party's first responsive pleading is due, whichever occurs first.

(4) New judge. If at any time during the course of the proceedings, except under circumstances involving alternate judges as set forth below in subparagraph (6), a new judge is assigned to preside over the case, each party may file one motion for disqualification without cause of the new judge, within the time limits in subparagraph (1) of this Rule. Provided, if a party has previously exercised a disqualification under this Rule 40(a), that party has no right of disqualification without cause of a new judge under this subparagraph.

(5) Disqualification on new trial. After a trial has been held, if a new trial is ordered by the trial court or by an appellate court, each party may file a motion for disqualification without cause of the presiding judge within the time limits set forth in subparagraph (1) of this Rule.

(6) Alternate judges. If the presiding judge intends to have a panel of judges as alternates to preside at trial or at any other hearing or proceeding in the case, a notice or amended notice of trial setting must include a list of judges who may alternatively be assigned to so preside if the presiding judge is unavailable. Upon service of the notice as to the panel, each party may file one motion for disqualification without cause as to any alternate judge not later than 14 days after service of written notice listing the alternate judges. Provided, if a party has previously exercised the right to disqualification without cause under this Rule 40(a), that party has no right to disqualify an alternate judge under this subparagraph.

(7) Service on judge. A party moving to disqualify a judge under this Rule 40(a) must mail a copy of the motion for disqualification to the presiding judge at the judge's resident chambers.

(8) Exceptions. The right to disqualification without cause does not apply to:

(A) a judge when acting in an appellate capacity, from another court unless the appeal is a trial de novo;

(B) a judge in a post-conviction proceeding, when that proceeding has been assigned to the judge who entered the judgment of conviction or sentence being challenged by the post-conviction proceeding.

(9) Misuse of disqualification without cause. Motions for disqualification without cause under this Rule must not be made in such a manner as to hinder, delay, or obstruct the administration of justice. If it appears that motions for disqualification without cause are being used for such purposes, or are being filed with such frequency as to impede the administration of justice, the Administrative District Judge or the Trial Court Administrator of the judicial district in which the misuse or impediment is occurring must notify the Administrative Director of Courts. The Administrative Director will review any allegations concerning the possible misuse of this Rule and whether the number of such motions is impeding the administration of justice. If the Administrative Director concludes, following review, that there is misuse of the Rule or that the number of disqualifications without cause is impeding the administration of justice, the Administrative Director will refer the matter to the Supreme Court. The Court, upon determining that there has been misuse of disqualifications without cause or that the disqualifications without cause are adversely affecting the administration of justice, may take appropriate action to address the misuse or impediment. Such action may include: an order prohibiting specified attorney(s) or law firm(s) from using disqualifications without cause for such period of time as is set forth in the order or until further order of the Chief Justice; an order suspending the use of disqualifications without cause in the affected judicial district or county for such period of time as is set forth in the order or until further order of the Chief Justice; or any other action that the Court deems appropriate.

(b) Disqualification for cause.

(1) Grounds. A party to an action may disqualify a judge for cause upon any of the following grounds:

(A) the judge is a party, or is interested, in the action or proceeding;

(B) the judge is related to a party by consanguinity or affinity within the third degree, computed according to the rules of law;

(D) the judge is biased or prejudiced for or against any party or the subject matter of the action.

(2) Motion for disqualification. A motion to disqualify for cause must be accompanied by an affidavit of the party or the party's attorney stating the specific grounds upon which disqualification is based and the facts relied upon in support of the motion. The motion for disqualification for cause may be made at any time. The presiding judge sought to be disqualified must grant or deny the motion upon notice and hearing in the same manner as other motions.

(c) Voluntary disqualification. A presiding judge in an action may make a voluntary disqualification without stating any reason therefore.

(d) Disqualification and assignment of new judge. Upon the filing of a motion for disqualification, the presiding judge must not act further in the action except to grant or deny the motion for disqualification. Upon disqualification of a judge for any reason, the administrative judge of the judicial district, or designee, must appoint another qualified judge in the judicial district, or apply to the Supreme Court for appointment of a new judge from outside of the judicial district.

End

Amendment History

(Adopted March 1, 2016, effective July 1, 2016; amended May 1, 2024, effective July 1, 2024.)

Plain-English Summary

Rule 40 gives litigants two distinct paths for removing a judge from a case. The first, disqualification without cause, needs no explanation at all -- a party gets one shot to file a motion asking for a new judge, and the court cannot ask why. That right comes with sharp deadlines: the motion has to go in within 7 days of notice setting the case for a conference or hearing, or 21 days of learning who the judge is, whichever comes first, and always before the judge has presided over anything contested. The rule tracks that deadline through a string of situations a case might hit along the way -- new parties joining late, a new trial after reversal, a new judge taking over, or a panel of alternate judges -- while making sure a party who has already used the automatic disqualification cannot use it again against a replacement judge.

The second path, disqualification for cause, has no deadline but a real burden: the moving party must file an affidavit spelling out specific grounds, such as the judge having an interest in the case, a family relationship with a party, a past role as counsel for someone involved, or bias against a party or the subject matter. The challenged judge rules on that motion after notice and a hearing, the same as any other motion. A judge can also step aside voluntarily without giving any reason. Because the rule hands parties an easy, no-explanation-required tool, it also builds in a safety valve: if disqualifications without cause are being used to stall cases or overload a court, the matter can work its way up to the Idaho Supreme Court, which can restrict or suspend the practice for an attorney, firm, or district.

Frequently Asked Questions

What is the difference between disqualifying a judge without cause and for cause?

Disqualification without cause requires no explanation at all -- each party gets one automatic request, subject to strict deadlines. Disqualification for cause has no deadline but requires an affidavit showing specific grounds, such as bias, a family relationship with a party, or a prior role as counsel in the case, and the challenged judge decides the motion after notice and a hearing.

How long do I have to file a motion to disqualify a judge without cause?

Generally, not later than 7 days after service of notice setting the case for a status conference, pretrial conference, trial, or the first contested motion hearing, or 21 days after receiving something that identifies the presiding judge, whichever happens first. The motion also has to come before the judge has presided over any contested proceeding.

Can I disqualify a new judge who takes over my case later?

Yes, within the same time limits that apply to the original judge, unless you already used your one automatic disqualification without cause earlier in the case. Once used, that right does not renew just because a new judge is assigned.

What counts as grounds for disqualifying a judge for cause?

Rule 40(b) lists four: the judge is a party to or has an interest in the case, is related to a party within the third degree, has previously served as attorney for a party in the action, or is biased or prejudiced toward a party or the subject matter. The motion must be backed by an affidavit stating the specific facts.

What happens if attorneys misuse the automatic disqualification to delay a case?

The rule funnels reports of misuse up through the administrative district judge to the Administrative Director of Courts, who reviews the pattern and can refer it to the Idaho Supreme Court. The Court can then bar specific attorneys or firms from using disqualification without cause, or suspend the practice in a district, for a set period.

Source & verification. Rule text are reproduced verbatim from the Idaho Rules of Civil Procedure, adopted by the Supreme Court of Idaho. Last verified July 14, 2026. · Official source

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