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§ 13.

Discretionary grounds for disqualification—Personal bias or prejudice

[Cumulative Supplement]

To be a disqualifying factor, the bias or prejudice demonstrated by the trial judge must be personal to the
party seeking disqualification, be of such deep rooted animus that a fair minded person could not be expected
to set it aside in judging the certain person or cause before the court, and—with some exceptions—it must
come from an extrajudicial source.
A personal bias has been defined as an "attitude toward the petitioner that is significantly different and
more particularized than the normal, general feelings of society at large."[FN55] Disqualification is not
required because the judge has definite views about the law pertaining to the case, or strong feelings about the
crimes or acts alleged in the case.[FN56] Attitudes toward the law are not personal to the party or party's
cause, and general feelings, even strong feelings, toward issues or crimes or criminal acts alleged usually
constitute nothing more than the generalized, normal feelings of society at large. A great many cases exist
which emphasize this distinction and insist that it is only a particular personal bias directed at a particular
individual or party and not a general or judicial bias that requires disqualification.[FN57]
An exception must be noted for any general attitude indicative of a bias or prejudice based on race,
religion, gender, or national origin, or even—in some areas of the law—age or disabilities. Where it appears
that the judge possesses a personal bias or prejudice against such a class of individuals, recusal may necessary
even if it is argued that the feelings are nothing more than those generally held by some segment of society or
the community at large.[FN58]

CUMULATIVE SUPPLEMENT

Cases:

Claim of homosexual bias: District court judge's comments during voir dire of defendant's bank fraud
prosecution which analogized homosexuality to illegal drug use and characterization of defendant's domestic
partner, who was male, as being defendant's "wife" during a sidebar conference did not establish that judge
was biased against defendant, and thus did not require recusal; although comments were insensitive, they did
not suggest favoritism or antagonism making fair judgment impossible, judge instructed jurors to not make
moral judgments about people, and wife comment was made after defendant's partner was ejected from
courtroom and was not made in front of jury. 28 U.S.C.A. § 455. U.S. v. Nickl, 427 F.3d 1286 (10th Cir.
2005); West's Key Number Digest, Judges 49(2).
The trial court should never assume a position of advocacy, real or apparent, in a case before it, and should
avoid any displays of hostility or skepticism toward the defendant's case, or of any approbation for the
prosecution's. State v. John F.M., 110 Conn. App. 181, 954 A.2d 251 (2008); West's Key Number Digest,
Criminal Law 655(1).
Trial judge's ex parte communication with father's attorney and distribution of copy of another case to
attorney did not demonstrate that judge could not be impartial or that he had prejudged case so as to require
his disqualification or recusal, absent any indication that ex parte communication involved merits of case or
that judge had personal enmity toward mother or bias in favor of father; judge indicated that he made both
sides aware of prior case to spur settlement. In re C.N.H., 998 S.W.2d 553 (Mo. Ct. App. S.D. 1999), reh'g
and/or transfer denied, (June 15, 1999); West's Key Number Digest, Judges 49(1).
Disqualification of judge is not warranted when the judge's impersonal prejudice arises from the judge's
background experience; judges generally have strong feelings about certain conduct and behavior, and when
the judge perceives that one party or the other has engaged in that conduct, the party should not be surprised
that he or she has incurred the judge's wrath. Eldridge v. Eldridge, 137 S.W.3d 1 (Tenn. Ct. App. 2002), appeal
denied, (Mar. 10, 2003); West's Key Number Digest, Equity 49(1).
Bias or prejudice of judge, in the disqualifying sense, must stem from an extrajudicial source and not from
what the judge hears or sees during the trial; otherwise, any judge that makes a ruling adverse to one party
would be open to a charge of bias. Wilson v. Wilson, 987 S.W.2d 555 (Tenn. Ct.. App. 1998), appeal denied,
(Feb. 22, 1999); West's Key Number Digest, Judges 49(1).

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[END OF SUPPLEMENT]

§ 14. Discretionary grounds for disqualification—Appearance of bias

[Cumulative Supplement]

If a circumstance exists which would give rise in the mind of a reasonable person a suspicion or reasonable
inference that the judge would be influenced by it, this is sufficient to require recusal—even if the judge is
confident that the circumstance, in fact, would not influence him in any way.
Case Illustration: Tenants filed suit against a variety of defendants seeking damages for the lead poisoning of
their children from lead-based paint in city housing projects. A group of defendant manufacturers asserted a
cross-claim against the city authorities, based upon city policies developed in the middle 1960s. The trial
judge had been an assistant mayor during two of the years in question, some 25 years prior to the instant
litigation. After amending their pleadings to assert the cross-claim, the manufacturers moved for the
disqualification of the trial judge. The judge observed that he had no recollection of the development of city
policies in the challenged area, and that he had not been personally involved in this work when he served as an
assistant mayor. He stated that he was personally satisfied that he could decide the case impartially, and that he
was not biased for or against any party. Nevertheless, he granted the motion and disqualified himself. He
concluded that the circumstances were sufficient for a reasonable person to question the judge's impartiality.
He found that this was sufficient to warrant his decision to recuse himself from the case.[FN59]
The substantial case authority indicates that it is the appearance of potential partiality rather than the actual
existence of it that is the standard in determining the issue of recusal. It is an objective standard based upon
the perception through the eyes of a hypothetical reasonable person of what would or even might influence a
judge, rather than any subjective assessment of the influences which actually motivate the judge, that
establishes the proper test for recusal.
Since the shift away from the duty to sit doctrine in the middle 1970s, the standard has been to favor
recusal in all close situations. It is frequently stated that the goal of the judicial code was to avoid not only
actual partiality but also the appearance of partiality, and that it is not necessary to demonstrate any degree of
actual bias or prejudice before recusal was required.[FN60] However, and although the so called "duty to sit"
doctrine was abrogated by the amendments to the federal statute and the promulgation of the judicial code,
there still remains considerable authority for the proposition that a judge should not step aside if there is no
reason to do so, on the mere allegation of a party. Although no longer couched in terms of the previous "duty
to sit" doctrine, recent cases hold that, although a judge has an obligation to recuse whenever there is a good
reason to do so, the judge has an equal obligation not to recuse when there is no reason to do so.[FN61]

CUMULATIVE SUPPLEMENT

Cases:

Reasonable person rule: Statute requires judicial recusal if a reasonable person, knowing all the
circumstances, would expect that the judge would have actual knowledge of his interest or bias in the case. 28
U.S.C.A. § 455(a). Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co., Inc., 535 U.S.
229, 122 S. Ct. 1290, 152 L. Ed. 2d 346 (2002); West's Key Number Digest, Judges 49(1).
Ex parte contacts with prosecutors: State Supreme Court's determination that sentencing judge who had
ex parte communications about petitioner with state prosecutor was not required to be recused based on
appearance of bias, and that such recusal was mandated only in situations in which judge engaged in active
conduct demonstrating appearance of impropriety, was not contrary to or an unreasonable application of
clearly established Federal due process law, so that petitioner was not entitled to habeas relief on that basis;
although Supreme Court cases provided that courts should satisfy the appearance of justice under the federal
judicial disqualification statute, there was no Supreme Court precedent holding that mere appearance of bias
by a trial judge, without more, violated due process. U.S.C.A. Const.Amend. 14; 28 U.S.C.A. §§ 455,
2254(d)(1). Johnson v. Carroll, 369 F.3d 253 (3d Cir. 2004); West's Key Number Digest, Equity 467.
Trial judge's conduct in interrupting plaintiff's opening statement six times, while interrupting defendant's
only once, in interrupting plaintiff's direct examinations of its own witnesses in a way that was consistently
derisive, in tone and content, of plaintiff's theory of the case, and in repeatedly asking defense counsel if he
wished to object to questioning of one witness, so infected trial with appearance of partiality by trial judge that
new trial was necessary; there was no hint that court was provoked by any misconduct of counsel or by any
want of ability on part of defense counsel to try his own case. Nationwide Mut. Fire Ins. Co. v. Ford Motor
Co., 174 F.3d 801, 1999 FED App. 148P (6th Cir. 1999); West's Key Number Digest, Federal Civil Procedure
1969.
Ordinarily, when a judge's words or actions are motivated by events originating within the context of
judicial proceedings, they are insulated from charges of bias. U.S. v. Nickl, 427 F.3d 1286 (10th Cir. 2005);
West's Key Number Digest, Judges 49(2).
Purpose of statute requiring that judge disqualify himself in any proceeding in which his impartiality might
reasonably be questioned, is to promote public confidence in the integrity of the judicial process and avoid
even the appearance of partiality. 28 U.S.C.A. § 455(a). U.S. v. Salemme, 164 F. Supp. 2d 49 (D. Mass. 1998);
West's Key Number Digest, Judges 40.
Objective standard: The test for recusal of a judge, under judicial ethics canon requiring recusal when the
facts make it reasonable for the members of the public or a party to question the impartiality of the judge, is
whether a person of ordinary prudence in the judge's position knowing all the facts known to the judge would
find that there is a reasonable basis for questioning the judge's impartiality; the question is not whether the
judge was impartial in fact, but whether another person, knowing all the circumstances, might reasonably
question the judge's impartiality—whether there is an appearance of impropriety. Canons of Jud.Ethics, Canon
3(C)(1). Ex parte Monsanto Co., 862 So. 2d 595 (Ala. 2003), as modified on denial of reh'g, (May 9, 2003);
West's Key Number Digest, Equity 49(1).
Former wife's allegation of ex parte communication between judge and husband during hearing on
husband's motion for contempt was legally sufficient, together with judge's expressed desire to "punish" wife
with change of custody, which relief was not sought by husband, to establish reasonable belief that judge
would not be impartial, as grounds for seeking judge's recusal. West's F.S.A. Code of Jud.Conduct, Canon 3,
subd. B(7). Pearson v. Pearson, 870 So. 2d 248 (Fla. Dist. Ct. App. 2d Dist. 2004); West's Key Number Digest,
Equity 49(1).
Creation of appearance that trial judge was biased required that he recuse himself and another judge be
assigned to rehear matter, in proceeding in which parties sought to incorporate non-cohabitation, overnight
guest restriction into custody portion of decree of dissolution; judge's comments during oral pronouncement of
his ruling, in which he specifically told parties that he would not incorporate non-cohabitation/overnight guest
restriction "into this judgment or any other judgment that I issue," created appearance of partiality indicating a
fixed prejudgment and an inclination not to fairly weigh evidence. Vollet v. Vollet, 202 S.W.3d 72 (Mo. Ct.
App. W.D. 2006); West's Key Number Digest, Judges 49(2).
In determining whether judge is required to recuse himself in proceeding in which his impartiality is
questioned, it is irrelevant, in determining whether there is an appearance of impropriety, whether the trial
judge was actually biased or prejudiced against a party. V.A.M.R. 2, Code of Jud.Conduct, Rule 2.03, Canon 3,
subd. D(1). In re K.L.W., 131 S.W.3d 400 (Mo. Ct. App. W.D. 2004); West's Key Number Digest, Equity
49(1).
Advice from state senator: Juvenile court judge's receipt of letter from state senator, in termination of
mother's parental rights proceedings, did not mandate recusal, although mother alleged that an appearance of
impropriety had resulted, where judge indicated he did not read letter, and he informed parties and furnished
copies of letter to them and created record of letter, and letter did not convey any information that was not
conveyed by independent evidence at trial. V.A.M.R. 126.01, subd. a. In re B.R.M., 111 S.W.3d 460 (Mo. Ct.
App. S.D. 2003), reh'g and/or transfer denied, (June 4, 2003) and transfer denied, (Aug. 26, 2003); West's Key
Number Digest, Judges 49(1).
Once a judge whose impartiality toward a particular case may reasonably be questioned presides over that
case, the damage to the integrity of the system is done, and thus, it is irrelevant, in determining whether there
is an appearance of impropriety, whether the trial judge was actually biased or prejudiced against a party.
V.A.M.R. 2. Robin Farms, Inc. v. Bartholome, 989 S.W.2d 238 (Mo. Ct. App. W.D. 1999); West's Key Number
Digest, Judges 49(1).
Trial judge's negotiation and announcement of his post-retirement plan to join law firm of plaintiff's
counsel did not create an appearance of impropriety, in connection with litigation between two members of a
limited liability company (LLC) in which plaintiff sought to terminate and acquire defendant's interest, and
thus defendant was not entitled to a new trial, as litigation took two-and-a-half years to complete, judge had
already made his substantive decisions in the litigation, and only thing that remained to be done was the
ministerial act of formalizing the substantive decisions. Code of Jud.Conduct, Canons 1, 2. Denike v. Cupo,
394 N.J. Super. 357, 926 A.2d 869 (App. Div. 2007); West's Key Number Digest, New Trial 21.
Trial court's comments to jury, after directing verdict in favor of elementary school students on question
of board of education's liability in negligence action based upon sexual abuse of students by school principal,
gave rise to appearance of partiality and were improper; comments went well beyond advising jury that it
would not be called upon to decide issue of negligence as result of a legal determination, informing jury that
"certain other facts [were] so overwhelming" that court had "made a determination about them already[,]" and
setting forth facts supporting conclusion that board was negligent as matter of law. Frugis v. Bracigliano, 351
N.J. Super. 328, 798 A.2d 614, 165 Ed. Law Rep. 674 (App. Div. 2002), reconsideration granted, (May 1,
2002); West's Key Number Digest, Trial 29(2).
Familiarity with expert witness: Although judge was not disqualified by his mere familiarity with an
expert witness in defendant's bench trial for assault, he was disqualified under the North Dakota Code of
Judicial Conduct from involvement in the case based upon the appearance of partiality; judge's statement to
the parties revealed he felt a reasonable person might question his impartiality because of his inclination to
believe the expert witness if credibility was an issue. Code of Jud.Conduct, Canon 3(E)(1)(a). State v.
Jacobson, 2008 ND 73, 747 N.W.2d 481 (N.D. 2008); West's Key Number Digest, Judges 49(1).
Impartiality might reasonably be question: Judge who offered probation to pregnant defendant if she
chose to have her baby should have at least disqualified herself from ruling upon the defendant's post-
sentencing motion for appellate bond and, therefore, violated the requirement to disqualify herself in a
proceeding in which the judge's impartiality might reasonably be questioned; the judge was unavailable when
the defendant filed the motion, instructed the bailiff to prepare and sign an order countermanding a fellow
judge's decision to grant the motion, and appeared to give the case special scrutiny motivated by a desire to
prevent an abortion. Code of Jud.Conduct, Canon 3, subd. E(1). Cleveland Bar Assn. v. Cleary, 93 Ohio St. 3d
191, 754 N.E.2d 235 (2001); West's Key Number Digest, Judges 11(2).
Campaign contributions by litigator: Judge's impartiality might reasonably be questioned, such that
judge should be disqualified from hearing case, when lawyer appearing before judge makes a campaign
contribution to that judge in the maximum amount allowed by law, member of that lawyer's immediate family
makes a comparable maximum contribution, lawyer further assists judge's campaign by soliciting funds on
behalf of the judge, and the contributions and solicitations occur during a pending case in which the lawyer is
appearing before that judge. Pierce v. Pierce, 2001 OK 97, 39 P.3d 791 (Okla. 2001), as corrected, (Nov. 21,
2001) and as modified, (Nov. 27, 2001); West's Key Number Digest, Judges 46.
Trial judge who granted attorney summary judgment did not abuse his discretion by failing to disqualify
himself, in legal malpractice and breach of fiduciary duty action brought against attorney by client regarding
settlement in underlying sexual abuse litigation; though another judge had denied attorney's motion for
summary judgment, judge in question told litigants that he had contacted attorney to inquire who his wife
should contact for a position at law school and judge expressed a dislike of having to sit in judgment of
lawyers, fact that a judge would reach an outcome different from that reached by another judge did not give
rise to an inference of prejudice, and judge's acknowledgment of his dislike was an indication that he gave the
client his due. Doe v. Howe, 367 S.C. 432, 626 S.E.2d 25 (Ct. App. 2005); West's Key Number Digest, Judges
49(2).