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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 expectedto set it aside in judging the certain person or cause before the court, and—with some exceptions—it mustcome from an extrajudicial source.A

personal bias

has been defined as an "attitude toward the petitioner that is significantly different andmore particularized than the normal, general feelings of society at large."[FN55] Disqualification is notrequired because the judge has definite views about the law pertaining to the case, or strong feelings about thecrimes or acts alleged in the case.[FN56] Attitudes toward the law are not personal to the party or party'scause, and general feelings, even strong feelings, toward issues or crimes or criminal acts alleged usuallyconstitute nothing more than the generalized, normal feelings of society at large.A great many cases existwhich 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 appearsthat the judge possesses a personal bias or prejudice against such a class of individuals, recusal may necessaryeven 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 SUPPLEMENTCases: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 judgewas biased against defendant, and thus did not require recusal; although comments were insensitive, they didnot suggest favoritism or antagonism making fair judgment impossible, judge instructed jurors to not makemoral judgments about people, and wife comment was made after defendant's partner was ejected fromcourtroom 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 shouldavoid 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 toattorney did not demonstrate that judge could not be impartial or that he had prejudged case so as to requirehis 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 bothsides aware of prior case to spur settlement.In re C.N.H., 998 S.W.2d 553 (Mo. Ct. App. S.D. 1999), reh'gand/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 whenthe judge perceives that one party or the other has engaged in that conduct, the party should not be surprisedthat he or she has incurred the judge's wrath.Eldridge v. Eldridge, 137 S.W.3d 1 (Tenn. Ct. App. 2002), appealdenied, (Mar. 10, 2003); West's Key Number Digest,Equity49(1).

Bias or prejudice of judge, in the disqualifying sense, must stem from an extrajudicial source and not fromwhat the judge hears or sees during the trial; otherwise, any judge that makes a ruling adverse to one partywould 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).

[Top of Section][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 reasonableinference that the judge would be influenced by it, this is sufficient to require recusal—even if the judge isconfident 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 across-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 instantlitigation. After amending their pleadings to assert the cross-claim, the manufacturers moved for thedisqualification 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 anassistant mayor. He stated that he was personally satisfied that he could decide the case impartially, and that hewas not biased for or against any party. Nevertheless, he granted the motion and disqualified himself. Heconcluded 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 actualexistence of it that is the standard in determining the issue of recusal. It is an objective standard based uponthe 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, thatestablishes 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 onlyactual 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 noreason to do so, on the mere allegation of a party. Although no longer couched in terms of the previous "dutyto sit" doctrine, recent cases hold that, although a judge has an obligation to recuse whenever there is a goodreason to do so, the judge has an equal obligation not to recuse when there is no reason to do so.[FN61]

CUMULATIVE SUPPLEMENTCases:Reasonable person rule:

Statute requires judicial recusal if a reasonable person, knowing all thecircumstances, 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 hadex parte communications about petitioner with state prosecutor was not required to be recused based onappearance of bias, and that such recusal was mandated only in situations in which judge engaged in activeconduct 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, Equity467. Trial judge's conduct in interrupting plaintiff's opening statement six times, while interrupting defendant'sonly once, in interrupting plaintiff's direct examinations of its own witnesses in a way that was consistentlyderisive, in tone and content, of plaintiff's theory of the case, and in repeatedly asking defense counsel if hewished to object to questioning of one witness, so infected trial with appearance of partiality by trial judge thatnew trial was necessary; there was no hint that court was provoked by any misconduct of counsel or by anywant 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 mightreasonably be questioned, is to promote public confidence in the integrity of the judicial process and avoideven 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 thefacts make it reasonable for the members of the public or a party to question the impartiality of the judge, iswhether a person of ordinary prudence in the judge's position knowing all the facts known to the judge wouldfind 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 reasonablyquestion the judge's impartiality—whether there is an appearance of impropriety. Canons of Jud.Ethics, Canon3(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,Equity49(1).Former wife's allegation of ex parte communication between judge and husband during hearing onhusband's motion for contempt was legally sufficient, together with judge's expressed desire to "punish" wifewith change of custody, which relief was not sought by husband, to establish reasonable belief that judgewould 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 beassigned to rehear matter, in proceeding in which parties sought to incorporate non-cohabitation, overnightguest 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 guestrestriction "into this judgment or any other judgment that I issue," created appearance of partiality indicating afixed 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 isquestioned, 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,