By Gina Hendryx, General Counsel
The Code of Judicial Conduct states that a judge should disqualify in a proceeding where his or her impartiality might reasonably be questioned. Examples in the code include instances where:
- The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding;
- The judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it;
- The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, parent or child wherever residing, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or has an interest more that de minimis that could be affected by the proceeding;
- The judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person;
(i) is a party to the
proceeding, or an officer, director or trustee of a party;
(ii) is acting as a lawyer in the proceeding;
(iii) is known by the judge to have an interest more than de minimis that could be substantially affected by the proceeding;
(iv) is to the judge’s knowledge likely to be a material witness in the proceeding.
5. O.S. 2001 Ch.1, App.4, Code of Judicial Conduct, Canon 3E(1).
Before filing a motion to disqualify
, the district court rules require specific procedural steps be taken by the attorney:
- An in camera request shall be made to the judge to either disqualify or to transfer the cause to another judge.
- If the request is not satisfactorily resolved, not less than 10 days before the case is set for trial a motion to disqualify or to transfer may be filed and a copy delivered to the judge.
- If disqualification or transfer is not granted, interested party may re-present the motion to the chief judge or to the presiding judge by filing in the case within five days from the date of said refusal a written request for a rehearing. A copy of the request shall be mailed or delivered to the chief judge or presiding judge, to the adverse party and to the judge who entered the original order.
- If the hearing before the second judge results in an adverse order to the movant, he shall be granted not more than five days to institute a proceeding in the Supreme Court or the Court of Criminal Appeals for a writ of mandamus.
12 O.S. 2001 Ch.2, App.1, Rules for District Courts of Oklahoma, Rule 15.
Failure to follow the procedure set forth in Rule 15 will result in the issue being waived on appeal. In the appeal of a divorce matter, the appellant argued that the trial judge erred in failing to recuse. The appellant claimed that because the appellee had been a paralegal in the community and had professional contacts with the judge, that the court’s impartiality might be questioned. The appellant also claimed that the ends of justice would be served if the case were transferred to another judge who did not have knowledge of certain members of the local bar who were listed as witnesses. The appellate court held that appellant waived these issues when he failed to follow the procedures set forth in Rule 15.
Appellant followed the first two steps, that is, speaking with the judge in chambers then filing his motion to disqualify. After the hearing on the motion and the judge’s denial, however, Appellant failed to re-present his motion to the Chief Judge of the county. Had Appellant re-presented his motion and still not received the relief he desired, Rule 15 provides him an opportunity to go forward by an originalproceeding in mandamus to the Supreme Court of Oklahoma. Having opted not to avail himself of two more chances to argue his position, Appellant cannot bring his complaint to this court and expect relief. Ward v. Ward, 1995 OK CIV APP 51, 896 P.2d 749.
Disqualification of the judge must be timely pursued and based upon proper standards. The case law, codes, statutes and ethics opinions are quite instructive as to when disqualification is proper, required and waivable.
Originally published in the Oklahoma Bar Journal
-- Nov. 6, 2010 -- Vol. 81, No. 29