Judicial Disqualification in Utah
by Steve Averett
The purpose of this article is to summarize Utah law regarding disqualification of judges.
Judges are generally not allowed to hear cases in which they: (1) are interested parties, (2) are closely related to a party, or (3) have served as an attorney for one of the parties. Utah Code Ann. ¤ 78-7-1 (2002).
Rule 63(b) of the Utah Rules of Civil Procedure says that a party (or their attorney) can file a motion to disqualify a judge. The motion needs to be "accompanied by a certificate that the motion is filed in good faith and shall be supported by an affidavit stating facts sufficient to show bias, prejudice or conflict of interest." Utah R. Civ. P. 63(b)(1)(A). The motion is to be filed after the action has begun, but no later than 20 days after: (1) assignment of the case to the judge, (2) appearance of the party or attorney, or (3) the time that the party learned or should have learned of the grounds for disqualification. Utah R. Civ. P. 63(b)(1)(B). The judge is to either grant the motion (resulting in transfer of the case to a different judge) or the judge is to certify the motion and affidavit to a reviewing judge. Utah R. Civ. P. 63(b)(2). If the reviewing judge finds that the motion and affidavit are timely, filed in good faith, and legally sufficient, the reviewing judge is to see that the case is assigned to a different judge. Utah R. Civ. P. 63(b)(3).
A judge is to "enter a disqualification in a proceeding in which the judge's impartiality might reasonably be questioned." Utah Code Jud. Conduct Canon 3(E)(1). A number of cases have dealt with recusal and disqualification of judges, under a question of impartiality.
In In re Inquiry Concerning a Judge, 81 P.3d 758, 759 (Utah 2003), a juvenile court judge, who was involved in a disciplinary action, sought disqualification of a supreme court justice who was to review the proceedings of the Judicial Conduct Commission. The Utah Supreme Court found that recusal was unnecessary. The Court ruled that no bias was shown by the justice's prior rulings or by the fact that the justice was related to an attorney who was representing the juvenile judge. (The juvenile judge was ultimately removed from office because of an ongoing situation where his impartiality might reasonably be questioned due to his "intemperate" remarks concerning government attorneys who routinely appeared in his court. In re Inquiry Concerning Judge Anderson, 82 P.3d 1134, 1152 (Utah 2004)).
In State v. West, 34 P.3d 234 (Utah Ct. App. 2001), the State of Utah requested an extraordinary writ that would require one judge to disqualify another judge from hearing a certain case. The Utah Court of Appeals granted the petition only to the extent of requiring the judge to reconsider an affidavit of bias for the possibility that a "judge's impartiality might reasonably be questioned" even if no actual bias was shown. Id. at 234.
In In re Inquiry Concerning a Judge, 984 P.2d 997 (Utah 1999), a public reprimand was imposed against a judge because of his ex parte communication with a party. In addition, the judge's disqualification was requested because the judge's impartiality had been questioned. The court found disqualification unnecessary, because the judge did not have personal bias toward a party. The judge had merely expressed anger toward one of the parties.
In State ex rel. M.L., 965 P.2d 551, 555-57 (Utah Ct. App. 1998), a mother requested that a juvenile judge recuse himself from hearing a termination of parental rights case, because he had presided over prior hearings regarding the child and had issued rulings that were adverse to the mother. The court found it unnecessary for a judge to recuse himself. The court said that Rule 63(b) of the Utah Rules of Civil Procedure sets forth the procedures for alleging judicial bias and that nothing indicated that the judge acted improperly or with actual bias.
In Gardner v. Madsen, 949 P.2d 785, 791-92 (Utah Ct. App. 1997), the court found that a judge did not have to recuse himself from a case involving a corporation in which the judge's nephew had served as an incorporator and board member. The court said that, even if he was a shareholder in the company, it appeared that he stood to gain nothing from the court case, such that the judge could still hear the case. The court noted that judges should "disclose a family relationship whenever it arises." Id. at 792 n.5.
In V-1 Oil Co. v. Department of Environmental Quality, 939 P.2d 1192, 1193-94 (Utah 1997), an administrative adjudicator served as a part-time staff attorney with the same administrative agency whose dispute he was to adjudicate. The trial court saw no conflict and the Utah Supreme Court agreed, reversing the decision of the Court of Appeals. The Utah Supreme Court said that recusal of the administrative adjudicator was not necessary because his work as a staff attorney was adequately segregated from his adjudicatory responsibilities. Id. at 1203-04.
State v. Ontiveros, 835 P.2d 201 (Utah Ct. App. 1992) was a manslaughter case. The defendant said that the trial judge had committed error by failing to recuse himself where the judge had recently granted an early release of the same defendant (on an unrelated conviction). The court said that "trial judges should recuse themselves when their 'impartiality' might reasonably be questioned." Id. at 203 (citing State v. Neeley, 748 P.2d 1091, 1094 (Utah 1988)). The trial judge's failure to recuse himself in this case was determined not to be reversible error because the judge "precisely" followed the legal requirements of Rule 29 of the Utah Rules of Criminal Procedure and because no substantial rights of the defendant were affected (i.e., there was no reasonable likelihood of a more favorable result since the conviction was determined by a jury and no actual bias was shown on the part of the judge.)
In Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252, 254-57 (Utah 1992), the court disqualified a Court of Appeals judge who was related by marriage to two members of the law firm that represented one of the parties (one was the judge's father-in-law and the other was the judge's brother-in-law). The court considered the relatives' financial interest to be one that would be affected by the outcome of the litigation.
In State v. Petersen, 810 P.2d 421, 423 (Utah 1991), a defendant "moved to disqualify the trial judge on the ground that the judge had previously, as a district attorney, prosecuted [the] defendant and had recused himself from presiding over [an earlier] trial of defendant." The trial court summarily denied the motion to disqualify, on the ground that it was not timely. The Utah Supreme Court said that the appearance of bias in the case could have been avoided by recusal. The defendantÕs convictions were reversed and charges dismissed without prejudice, for other reasons (i.e., delay in bringing the case to trial). Id. at 427-28.
In State v. Gardner, 789 P.2d 273, 278 (Utah 1989), it was alleged that the trial judge should have recused himself. The judge had worked at the courthouse where the criminal defendant had shot and killed an attorney during an escape attempt. The court said that if a reasonable person would doubt the judge's impartiality he should have recused himself. However, since there was no showing of actual prejudice to the defendant, any error was harmless.
In Madsen v. Prudential Federal Savings & Loan Ass'n, 767 P.2d 538, 543-44, 547 (Utah 1988), the Utah Supreme Court overturned an order which had disqualified another judge, following trial, saying that: (1) the motion to disqualify was not timely, (2) remarks made by the judge did not sufficiently show prejudice, and (3) the judge did not have a financial interest in the outcome of the case. The court said that, in order to be timely, a motion to disqualify (under Rule 63(b) of the Utah Rules of Civil Procedure) must be filed at the first opportunity after learning of the facts supporting a disqualification and as soon as practicable.
In State v. Neeley, 748 P.2d 1091, 1093-95 (Utah 1988), a trial judge was not required to recuse himself since he determined that he had no actual bias against the criminal defendant merely by being involved in the prosecution of the case 20 years earlier.
Bias or Personal Knowledge
A judge is to enter a disqualification in instances where the judge has: personal bias concerning a party or attorney, strong personal bias about an issue in the case, or "personal knowledge of disputed evidentiary facts concerning the proceeding." Utah Code Jud. Conduct Canon 3(E)(1)(a). A number of cases have considered bias and personal knowledge of judges.
In Campbell , Maack & Sessions v. Debry, 38 P.3d 984, 992-93 (Utah Ct. App. 2001), the court found no reversible bias or prejudice where a judge's comments (during the proceeding) did not indicate any extra-judicial prejudice and where the party alleging prejudice failed to file a supporting affidavit.
In In re Inquiry Concerning a Judge, 984 P.2d 997, 1005-07 (Utah 1999), the court said that bias or prejudice usually needs to come from an "extrajudicial source, not from occurrences in the proceedings before the judge." The court found disqualification unnecessary, where the judge had merely expressed anger toward one of the parties, during the proceedings.
In In re Affidavit of Bias, 947 P.2d 1152, 1153, 1156-57 (Utah 1997), the court held that an allegation of bias was made in a timely fashion, even after the Utah Supreme Court opinion had been issued, because the party alleging bias didn't know of a potential conflict of interest until that time. One of the justices who had sat on the case had been a member of a predecessor of the opposing party's firm thirteen years earlier. However, the court concluded that an inference of bias could not reasonably be raised.
In Kleinert v. Kimball Elevator Co., 905 P.2d 297, 301 (Utah Ct. App. 1995), the plaintiff alleged, for the first time on appeal, that the case should be heard by a different judge because the judge had developed a bias regarding her claim. The court held that an allegation of bias should have been brought up, by affidavit, in the trial court and could not be brought up for the first time on appeal.
Sukin v. Sukin, 842 P.2d 922, 926-27 (Utah Ct. App. 1992) was a custody case in which the case was to be remanded, following appeal, to the judge who had awarded custody to the mother. The father was concerned about the possibility of bias. The court refused to address the issue of bias or prejudice when it was raised for the first time on appeal and without first filing the appropriate affidavit in the trial court.
In Madsen v. Prudential Federal Savings & Loan Ass'n, 767 P.2d 538, 545 (Utah 1988), the court found that a judge had no personal knowledge of disputed evidentiary facts in a case involving profits made by a savings and loan company on its budget payment accounts.
A judge is to enter a disqualification where the judge has served as an attorney in the matter, where the judge practiced law with a lawyer who served in the matter during the time of their association, or where the judge or lawyer served as a material witness concerning the matter. Utah Code Jud. Conduct Canon 3(E)(1)(b).
A judge is to enter a disqualification where the judge knows that the judge or a member of the judge's family has an economic interest in a party or in the subject matter of the controversy or has more than a "de minimis interest that could be substantially affected by the proceeding." Utah Code Jud. Conduct Canon 3(E)(1)(c).
Close Relationship to the Case
A judge is to enter a disqualification in situations where the "judge, the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person" is a party; officer, director, or trustee of a party; a lawyer in the proceeding; a person with more than a "de minimis interest that could be substantially affected by the proceeding;" or is likely to be a material witness in the proceeding. Utah Code Jud. Conduct Canon 3(E)(1)(d).
A judge is to "keep informed about the judge's personal and fiduciary economic interests, and should make a reasonable effort to keep informed about the personal economic interests of the judge's spouse and minor children residing in the judge's household." Utah Code Jud. Conduct Canon 3(E)(2).
Waiver of Disqualification
If a judge is disqualified, the judge can tell the parties and their lawyers the reason for the disqualification and ask them to consider, out of the presence of the judge, whether to waive the disqualification. Utah Code Jud. Conduct Canon 3(F). If all of the parties and attorneys agree that the judge does not need to be disqualified, the judge may participate in the proceeding. Utah Code Jud. Conduct Canon 3(F). The agreement to waive the judge's disqualification is to be entered on the record, or if written, filed in the court file. Utah Code Jud. Conduct Canon 3(F).