*1 46,536 No. Company, Hulme, Construction Charles Hulme
Charles d/b/a Woleslagel, v. Frederick Twentieth Plaintiff, Judge, Judicial District, Division Defendant. (493 541) 2dP. *2 Opinion 5, January 1972. argued Eugene Balloun, Chartered, Bend, Balloun, of Great of Turner & /. cause, Mary him and Lee Turner A. same firm were with and Senner plaintiff. on the brief for the Collister, Jr., general, argued Edward and G. assistant the cause Miller, attorney general, Vern was with him on the brief for the defendant. Ward, Larry Keenan, Jerry On the brief amici M. curiae were: M. John Russell, Nuss, Southern, Hugh Mauch, Pringle Robert E. D. William H. and Pringle, Nuss, Carpenter, Loyd Phillips, and M. H. Brock R. John Kaufman McPherson, Humphreys, Bend; Thompson, and Donald H. all Great Marvin Earnest, Robert Culley, Culley, L. Rex L. and Woelk and and Michael S. Hol- land, Russell; Dreiling Hays; all of L. Dennis Bieker and Bieker of and Jack Hampton, Royce, Engleman Nelson, N. Stewart and and of Salina. opinion the court was delivered by Harman, C.: This is an original brought in mandamus proceeding by plaintiff defendant, requesting this court administrative order judge of the Kansas, One, Twentieth District of Division Judicial disqualify 3, 198, himself pursuant Chapter Section Laws 1971 20-311d, K. S. A. 1971 et seq.). (now Supp.
Certain facts forming background of this proceeding, are in dispute, may gleaned from plaintiff’s Briefly petition. stated, plaintiff alleges he files this action and as individually rep- individual, resentative of a class persons, corporate who are Balloun, Chartered, clients of the firm law of Turner & and have District, cases in the Twentieth pending in which district Judicial divisions; that there are two an action plaintiff brought the district court of in the Twentieth District county Barton Judicial Hulme, entitled Charles Charles Hulme Construction Com- d/b/a Co., pany, Roy Andy Trucking versus W. Kindsvater Stevens Inc., defendants, 23,950; 19, 1971, certain case that on July No. members of the and filed an affidavit signed pursuant Turner firm 3, to Section Chapter disqualify- Laws the purpose defendant, ing bias and further ground of prejudice, case, participation over presiding plaintiffs Septem- 1, 1971, ber plaintiff and filed his the case for the signed 1, 1971, same purpose; on ordered a September hearing defendant held as a result of the affidavits on Septem- 9, 1971, ber objection, over defendant held a plaintiffs district-wide as to all hearing cases in which similar affidavits had been filed either clients, Turner law firm their at the conclusion of which defendant found affidavits frivolous and hearing without merit and denied sought; the relief defendant further ordered that *3 9, 1971, five of the of copies the transcript September hearing be made, the cost thereof taxed firm. to be the Turner signed
The affidavit the a by attorneys general contained allega- tion bias and prejudice of and recited part of defendant as certain occurrences nine in which examples prior cases he had and in an presided judge which of the Turner firm had stated, on behalf of appeared litigants; one broadly events rulings described consisted of made defendant by several adverse also, litigants by to the Turner and represented firm in other cases, remarks and himby comments to the relative conduct and of tiie firm particular attorney tactics member who of the partici- in the case. signed The affidavit pated by plaintiff, omitting formal as follows: reads parts, being age “I, being duly Hulme upon my Charles of lawful after first sworn allege and state:
oath “First, above-captioned that I am a represented to the and am case Balloun, Chartered, by attorneys law; Turner & therein at “Second, previously by that an attorneys affidavit has been filed herein said upon stating personal and facts reasons a belief that bias and part Woleslagel, Judge, Frederick exists on Honorable Division I of District; the Twentieth Judicial “Third, purpose disqualifying that said affidavit was filed said any judge participation case; from further in the trial of this “Fourth, I that have read said affidavit and the contents thereof have been completely fully explained me; “Fifth, that on the basis of said information and numerous other facts and the Honorable same would make Ch. 198 ney’s circumstances bias and “Sixth, “Eighth, “Seventh, affidavit into [1971] prejudice on that I am explained Frederick Kan. further it this affidavit purpose Sess. reference difficult participation Woleslagel. to me part Laws.” this affidavit for us of said I by my hereby as if affidavit is to in the to have a fully said incorporate trial exists attorneys, set forth herein. fair of this case. purpose comply the contents I am of the I believe with impartial disqualifying of said that provisions trial before opinion personal attor- said discretion a trial court’s Preliminarily, we note that the exercise of mandamus, be an the trial cannot controlled but where order exists as matter court denies right privilege law, and there mandamus is no remedy by appeal, invoked. stated, of the
Simply provisions plaintiff’s position law to give enactment him a as matter of have right he timely case transferred to another division of court when statute; an files in the alleging any grounds set out K. S. A. right under 60-2102 he has no as of from the (a) appeal transfer, lie denying order nor does appeal intermediate A. K. S. 60-2102 because the a controlling order does involve (b) of law. will question Defendant’s contentions opposition stated. presently reciting
Before considering the statute question may to an helpful understanding of the parties contentions relative construction be placed survey it to briefly enacted legislation elsewhere pertaining trial judge on of bias or ground prejudice, judicially con- Some strued. states neither statutory constitutional nor pro- subject and the matter vision of recusation is left to the *4 of conscience individual good judge. In few states the appel- have, late courts under their rule-making prescribed a power, pro- however, Many, cedure. now have some of type legislation. Those statutory having procedures prejudice recusation bias or categorized three groups, based on the ease with which obtained, change may although slight variations exist within each group.
Some states factual require that the issues of prejudice heard and determined recused, is, before is to be judge his actual must be proved order obtain his disqualification. In this several group jurisdictions require that another judge hear the chal- permit fact while others determine the of prejudice, mind with lenged state of judge (Kansas, to determine his own some class prior fell into latter exception, generally v. Flannery enactment of legislation under consideration [see Flannery, 203 Kan. 2d 846]). P.
The next require those which group comprises jurisdictions of filing an facts but without containing affidavit of prejudice hearing on the fact of The affidavit must contain prejudice. general allegation supporting of factual statements prejudice, plus the charge legal of on the prejudice, passes only and the judge sufficiency alleged. truth of the. facts affidavit—not Representative of this provides is the federal statute which group that when a timely to a in district court files a proceeding faith, affidavit, sufficient in good certified been made to have him judge against has a either personal bias or prejudice inor favor of no further any adverse such shall party, judge proceed therein, but another hear such judge assigned proceeding. shall be The federal shall act “The affidavit contains this further proviso: state the facts and that bias or the reasons for the belief exists. . . .” in the USCA facts (28 alleged Here the ¶144). true, affidavit are taken as but those fair give facts “must im- charge impede bent mind that may prevent of 22, 33-34, States, partiality judgment” 255 U. S. United (Berger 65 L. ed. 41 S. jurisdictions, Ct. In this 230). category indicated, on tibe instance, the trial passes only in the first legal sufficiency the affidavit filed him.
The third jurisdictions filing group requires only the obtain a fair stating the affiant believes he cannot trial judge’s underlying because of the bias or Facts prejudice. affidavit, affiant’sbelief conclusory type need be stated in sufficient, allegation being further is automatic truth participation without hearing or the matter legal sufficiency alleged the affidavit. No discretion is vested judge against whom affidavit is recusation as it is the of the affidavit itself which not the actual existence disqualifies of circumstances in fact him. disqualify Typical would of this of statute type 12-409, 410, is that of Arizona Rev. St. (Ariz. Anno. 411) §§ termed a has been mandatory disqualification reason that under it a has the fact an absolute substantive right *5 containing an affidavit filing change
to obtain a of judge upon the groups excellent discussion language (for the statutory or Bias— For Prejudice Judges “Disqualification mentioned see Status, Evolution, Oregon Experi- Current Common Law ence,” [1969]). Review 311 Oregon Law of which is interpretation Chapter S. A. 1971 Supp.
K. pertinent part: provides subject proceeding, of this any party (a) action in a district court files an affida- If to either “20-311d. (b) specified any grounds in subsection the administrative alleging vit court if to another division of the there judge the action at once transfer shall judge request judicial of another district division, or shall one is more than be filed in a district court assigned preside If an affidavit cause. in such be judge shall then such at once one division or in which is but there request appointment notify departmental justice district and for such judge action. another such hear (a) alleged provided “(b) may as in subsection for be Grounds which change judge are: prior “(1) engaged action judge been counsel That the has appointment judge. election or “(2) judge in the action. That the is otherwise interested party “(3) judge to the action. of kin of or related to either That the “(4) judge in the action. That the is a material witness “(5) filing be- party cause to believe and does That the the affidavit has personal bias, judge prejudice, or lieve that interest of the on account of the impartial he cannot Such shall state the obtain fair and trial. affidavit facts bias, prejudice or an exists. [Em- the reasons interest belief for phasis supplied] making, judge punish contempt any one “20-311e. No or court shall filing presenting provided [20-311d] the affidavit section 3 act, motion founded thereon. (a) party granted change judge “20-311f. No shall be than more one any action, party urge objections but each shall be heard to to a Provided, however, (7) in the first instance: That a shall have seven days pretrial, receipt after or after written notice of which the assigned heard, later, case is or before whom case is to be whichever is in which the affidavit filed. “(b) county The trial shall held within the in which venue lies.” Plaintiff urges this statute should construed aas mandatory statute, arguing language contains similar in the Arizona cited and should be similarly construed. Plaintiff also we points formerly out had a disqualification statute justices 61-701, applicable S. peace (K. A. since repealed) required only conclusory type party believed he could fair and impartial trial on ac- count of the bias or justice affiant, of such *6 which this court as a interpreted mandatory disqualification 142; Miles, Wilson, 211 Pac. Borden v. (Weaver Kan. 130 Kan. 288 Pac. In there 563). arguing question the attention passed upon analogous is one at bar directs plaintiff in Borden: following language right change justice peace “The of a to a of venue before a the timely filing statutory grounds the of an the affidavit with statement of statute, [p. statutory therefore is absolute affi- 810] under the . . . The requisite literally davit which contains the of the recitals lifts the cause out justice’s jurisdiction, leaving naught except performance him to do of his the duty transferring ministerial justice peace the cause another forwarding papers transcript justice together the to such other a certified with proceedings.” (pp. 811-812.) the In response defendant asserts the mere of an pur- affidavit porting comply with the statute cause should not and of itself the disqualification of a judge against whom the is directed and that the statute is more akin to statute and should the federal be similarly construed. further which says Defendant the affidavits were actually filed were not sufficient to legally require disqualifi- cation under the statute. In this our argues legislature connection he intended its by use term “personal” in our statute that bias or prejudice must be one directed liti- toward personally gant rather than against his attorney. He asserts the procedure also employed here amounts ato which blanket-type disqualification, practice should not permitted. he contends Finally, that if it be held the statute requires automatic of a disqualification without a determination then sufficiency, the statute is uncon- stitutional as violative of the separation of powers’ doctrine.
Our review of the subject statutes on the elsewhere indicates them, alone, none of standing is sufficiently similar to our own to dictate adoption particular here. construction As normally true in construction, statutory legislative intent best be deter- mined from the plain meaning of the words used in the statute of all the light experience available to the law-making body. We consider first whether the dis- legislature intended mandatory statute, Arizona, qualification type that a hearing type statute, as in federal code. As initially introduced the House at the Judiciary Committee 1971 legislative session the proposed law did not (HE 1297) contain the we have italicized in language enactment, is, final quoting in subparagraph of what (5) A. now K. S. 20-311d Supp. word (b) “personal” did not shall state “Such affidavit therein: nor did the last sentence appear or an bias, the facts the reasons for belief were sentence, the word “personal”, interest exists”. This to final process prior legislative added amendment dining bear considerable did proposal introduced the adoption. initially As statute, cannot but we overlook the Arizona resemblance to argues purpose made. Plaintiff amendment thereafter additional merely supply sentence in was adding question dis- When our research safeguard remedy. abuse closes no mandatory statute construed to much of argument loses type contains such proviso, statute, And, course, its old appeal. justice peace our con- mandatory disqualification, to require was construed *7 no facts and tained for a reasons. statement provision changes The background, proceedings historical legislative made in a the of enactment be considered during statute course (Urban Agency Renewal by determining legislative a court in intent Decker, 2d The sentence which was 373). 197 Kan. P. of its is during virtually added to the statute the course enactment identical that found federal statute (28 USCA us significant legis- This is leads to believe the 144). § lature had mind in amendment. practice the federal that making for Although this statute no particular requirement contains faith, certificate in good counsel affidavit made by party’s statute, does already as the federal we note that another statute on the books that provides every by pleading party represented an one attorney signed shall be at least of record in attorney name, further, his signature individual of an certificate constitutes his that he has read the and to pleading knowledge, best information and belief there good ground not it and that it is for A. support interposed delay S. (K. 60-211). 20-311d, We conclude then K. S. A. provisions Supp. f do e and prescribe mandatory type procedure for disqualify- ing for bias or but rather judge prejudice, contemplate hearing sufficiency of the as legal affidavit —not to the fact of bias prejudice. We further hold the affidavit must contain facts and reasons which fair for belief give that on account of the bias affiant judge cannot obtain a fair trial. this
Having reached conclusion we are confronted with fur- ther should make procedural to who this determination question legal Our statute admix- sufficiency? unique, appears ture differing important from the federal respects statute those other jurisdictions requiring sufficiency hearing. Again we think its provisions entire must be read and together considered so as all give effect to sections where possible.
20-311d (a) provides that of an affidavit alleging any of the grounds (b) in subsection specified administrative “shall judge at once transfer the action to another division of the division, court if there is more than one or shall request a judge of another judicial district be assigned to in such preside cause”. The statute then use provides departmental justice assign- ment of another judge the case of a judge one or one division district court. Transfer is the first step called request for (or assignment another so that judge transfer may be made). 20-311f provides “each shall be heard to urge his objections judge in the instance.” first Clearly to objections relates to a judge basis his bias or prejudice (b). subparagraph 20-311d (5) hearing referred to is on the legal sufficiency To sustain the affidavit. request for change judge must find that the party seeking change “has cause to and does believe believe that account of the bias, or interest of the personal prejudice, cannot obtain trial”, a fair and and the impartial affidavit must state facts and which, truth, reasons their assuming give fair support for is, belief, that demonstrate a well-grounded belief he will not have a fair trial. Transfer to another is the statute’s first command and we believe the intended legislature by the use of such impera- *8 that is tive transfer to be automatic of upon filing an affidavit. With this in mind we further the hearing believe proviso contemplates the of a second judge use one to whom the case is transferred —the In this reaching conclusion we note the assigned. obvious dis- the arising satisfaction somewhat incongruous federal practice the sit in having challenged judge judgment of on the legal suffi- challenge the him. In 2B ciency against Barron and Holtzoff, Procedure, and Part, Practice Pocket Federal this § appears: comment having judge against in “There are obvious difficulties the whom an affidavit pass legal sufficiency is on the filed of the affidavit. To avoid these
difficulties, approved the Conference United States has a bill Judicial Congress require pending against would other than the one pass upon sufficiency (p. the affidavit is filed to the whom the affidavit.” 30.) second if he finds the affidavit judge, Under this construction the sufficient, to to hear and determine legally proceed be would he simply If finds insufficient would legally case. the affidavit proceedings, transfer case back the first further to event, the case the propriety after final determination of in which upon appeal would become reviewable disqualification A. of K. S. 60-2103. the provisions an or without judge, in mind that with It should borne made, always, change may being request affidavit filed motion, particular himself in a case. his own recuse comment dis- require contentions presented further Some attorneys filed by the first affidavit It is position. argued In the light not signed by party. because ineffective “If either action party any the statute to language plain . .” we emphasis), agree an . (our files affidavit. a district court the party made by hold that the affidavit must and accordingly however, case, In this there attorney. by rather than litigant by signed by party incorporated a later affidavit was counsel, which later affidavit we by believe reference made statute, and this with sufficiently complies substantially language contained precise lack use of the despite wording of the statute between difference statute. The materiality is not of sufficient to warrant affidavit the party’s fair trial should not depend The right the latter. nullification of distinctions. fine such and in defendant excellent contended brief is further It herein by plaintiff amici curiae supplied was legally insufficient because judicial to obtain bias counsel rather for was the ground This is not litigant personally. position without party than In an annotation found 23 ALR 3rd 1416 support. judicial For Bias Judge Against Counsel For “Disqualification entitled summary appears: Litigant”, part judge against litigation personal prejudice “While change regarded judge’s feeling cause for a generally as sufficient litigant always animosity recognized has counsel for not been toward as a many recusation, having apparent taken courts ground for view that such himself, presumed bias, directed toward cannot be affect However, contrary view, impartiality. hostility judge’s toward presumed degree adversely be of such affect the interest, (p. 1418.) in a number of cases.’’ has found client’s *9 no furnishes counsel against that bias or prejudice
The view common ancient stems judge of a ground disqualification impartiality the oath taken having dogma law or prejudice bias exercise of incapable becomes thereupon the case. in counsel toward feeling any because of against litigant falli- of human the possibility recognizes more modern view woolsack, seems which view even one seated bility confidence public to sustain likely and more more realistic one in our implication is no There system. integrity judicial that one cannot belief for the statute that facts reasons or character. nature be of any particular obtain a fair trial must alleged prejudice bias about whether says nothing The statute which the statute That attorney. is against party against as to whether of the party does make of concern the belief that prejudice be denied scarcely can obtain a fair trial. It can to the interest can be as detrimental against party’s himself. The clear intent against party as party prejudice a fair and only give party of our is not purpose that the business of trial also to assurance impartial give but avoid suspicion a manner as will courts will be conducted such States, We conclude supra). v. United (see Berger of unfairness attorney may ground that bias or toward an prejudice statute. addition of has been raised reason of the Considerable ado the word the course of enactment “personal” during made person statute. The to relate word attempt as to limit the so disqualifying significance by him. We are unable to attribute such It reason of the addition the word. in the statute appears bias, interest, is, the nouns adjective modifying prejudice or bias, or interest more—which we —no taken into account. dis- It is also asserted the discloses blanket practice employed prohibited disruptive should qualification judicial of normal administration. We are told affidavits were firm in the law its clients in question approximately cases the Twentieth That pending District. eighty-three Judicial has been termed blanket disqualification has been condemned v. 10 N. Waugh, in Clawans 77 A. 2d Super. J. Holt, However, 2d 86 So. Ginsberg (Fla., 1956). we think *10 396 different as are sufficiently those cases in presented situations In each o£ inapplicable. there rulings announced
to make the hearing any a from enjoin to court attorney sought cases an those Addi- might be involved. in which the cases in future decision, which was Jersey the time of the New in at tionally, dis- challenged tribunal convened rendered aby special one ac- generally recognized only that state’s statute trict judge, Relationship for recusation: common law as basis grounds cepted for any as counsel of the participation any prior to parties; in the question of an matter in opinion upon expression parties; Bias action; result of the action. and and interest in the pecuniary as sufficient disqualify judge, were acknowledged in Clawans being following: the rationale expressed “Fundamentally reason for of this doctrine is that a the establishment impartial justice oath of office do be- is conscience-bound parties litigation (p. 521.) tween. before him.” to note New later interesting Jersey It is Court Supreme court which rule of adopted provides: any disqualify shall “The court himself on his own motion any (f) not sit in matter . . . when there other reason shall preclude hearing might judgment, might a fair and or which unbiased reasonably parties (Our emphasis.) lead counsel or believe so." (Rules Governing Publishing Co., Jersey The Courts State of [West New 31.) 1:12-1, p. 1971] In the Florida Ginsberg Court declined re- Supreme grant injunction to restrain forever the quested appellee judge en- in case which tertaining any the appellant attorney may appear but did out that Florida had point a statute providing disqualifica- judges “appellant tion resort to it as often as finds necessary.” (p. 651.) Here affidavits have separately been in pend- filed individual ing cases which members of the Turner firm are presently em- and future blanket ployed disqualification is nonexistent. already disposed We have of several of the contentions asserted why defendant as to "by affidavit by plaintiff should be insufficient, legally (cid:127)deemed the principal being one that bias against counsel for is not a basis for disqualifi- cation. There remains only question whether the affidavit fur- nishes fair grounds, reasonable its statement of facts reasons, for the belief fair trial cannot be obtained. In Johnson, Palmer v. 161, Kan. 294 Pac. this court held: documentary ruling this court “When the of a trial court turns on evidence meaning . . .” can examine the documents and and effect. determine their (Syl. ¶1.) one purely The the affidavit is question sufficiency law which is based part we are free to determine. firm in the Turner law cases making rulings adverse to in which they rulings have as well as restrictive previously appeared nature, of which held tins some been court upon appeal It insufficient to warrant from. judgment appealed reversal almost no goes saying ground judicial without that this furnishes Education, disqualification. In 134 Kan. Sheldon v. Board of *11 430, 4 P. 2d this court held: rulings judge, although erroneous, “Previous adverse trial numerous and they review, subject ordinarily
where to are are not and alone sufficient to (Syl. 3.) disqualify judge.” show such bias as would him ¶ Nor the does trial remain in judge’s duty exercise of control of trial than maneuvering such no more supply ground, judicial suggestions or admonition to In counsel for improvement. Horton Ward, v. 774, 199 Kan. Montgomery 428 P. 2d we stated: charged sug- “A is not to be with because he desires and gests improved procedure.” (p. 248.) what he thinks to be trial However, the affidavit contains more than and restrictive adverse rulings and admonitions for Without further improvement. detailing matter, think feeling we it reveals in the nature sufficient engendered prior proceedings to be carried permitted over as to fair constitute for fair the belief a trial could not be obtained under the particular circumstances. we Again emphasize it is the belief of the party which statute makes of concern. Accordingly we hold that the affidavit filed in his own plaintiff action was legally sufficient to require disqualification.
Defendant questions A. of K. S. 20-311d constitutionality doctrine, ground its enactment separation violates powers’ but raises this issue only we construe the event statute to provide mandatory for which disqualification, we have not done. note, however, that, We except single for dubious precedent other where reasons for were unconstitutionality present, appellate courts this kind of universally upheld have legislation against ground. types constitutional attack upon statutes we discussed differ those materially providing have from peremptory without challenge assigning any ground, reason or Court, Superior held unconstitutional (see been have Johnson 2d We no constitutional 5). impediment 50 C. 2d 329 P. see suggested. ground as follows: is directed plaintiff is entered for Defendant Judgment 23,950 in court county transfer case No. the district of Barton litigant, wherein is a to another to K. S. A. plaintiff pursuant 20-311d, for further on its merits. Defend- proceedings 1971 Supp. transfer other cases within Twentieth pending is directed to ant affidavits for been District Judicial filed, 20-311d, judge, pursuant hearing upon another the affidavits. sufficiency of legal ordered. is so plaintiff
Judgment BY THE COURT. APPROVED Prager, JJ., participating.
O’Connor agree I cannot with the statement J., (dissenting): shown Kaul, syllabus and therefore respectfully item No. dissent therein and from holding those expressed portions from Also, my thereto. views relating concerning the opinion holdings and 8 ihe syllabus items Nos. 7 differ to some extent stated in expressions court with corresponding respect thereto. the other ten holdings with itemized in fully agree syllabus. I of K. S. A. portions 20-311d, pertinent Briefly, Supp. *12 herein, that an require affidavit of as construed disqualification a made and contain facts party and reasons must for the belief that on fair account of give the bias affiant cannot judge obtain a fair prejudice trial. construed, as further that provides, statute The the filing judge affidavit the administrative shall of the at once transfer as to judge hearing action to another the legal sufficiency affidavit. of K. S. A. 1971 Supp. 20-311d purpose The is to afford either efficient, an action convenient any and party prompt means of the judge any grounds five disqualifying enumerated filing of a (b) upon legally in subsection sufficient affidavit grounds of the enumerated. any The alleging test of legal sufficiency whether the affidavit meets the simply requirements is of the statute. the affidavit in the instant In view case is my insufficient because not contain the express it does statements (1) required by the e., i. personal not specified, on a ground statute and is based (2) attorneys. bias or prejudice against state the affidavit
The that the party statute requires account of that on and believe that he has cause to believe does he cannot bias, judge interest of personal prejudice affiant he believes says obtain a fair and trial. impartial Here is and that he bias exist and on the part for us to have a that such would make it opinion difficult contemplates fair tihe clearly trial. The language of plain cannot affiant that he positive, unequivocal part belief he believes obtain a fair trial as to a mere opposed opinion bias an might make a fair trial language requiring difficult. The believe, believe, affiant to clearly that he has cause and does state reflects this legislative intention.
The mere that he cannot obtain a fair trial opinion party not a willing statement of belief. affiant would be Perhaps the belief burden the his obligation by stating positively his oath trial, and reasons a fair but he therefor that he cannot obtain a mere has failed to do than deficiency so here. The more statute, The I to be technicality. purpose of the believe meritorious, is belief of personal to afford a who has a party, positive tihe bias or and means of prejudice, securing efficient prompt To tihe end question. accomplish could not be allegations sought expeditious disqualification — —the truthfulness, legisla- as a subjected safeguard, to test for thus carefully personal ture statement of required positive burden imposed belief the facts reasons therefor less would in on the oath of tihe To effect party. require anything disqualification. make the statute as a operate peremptory the affidavit filed herein is sufficient accepting legally effect to a safeguard exposure charge prejury, circumvent tihe intended as evidenced the care- legislature I which believe of the statute. worded fully requirements tihat in the instant case recites merely
The affidavit has of his that the contents thereof read the affidavit and for that reason he believes personal bias fully explained been he exists. refrains from saying He believes true, nor to be does state attorney’s contents of tihe *13 which would knowledge of his own a support facts or reasons allegations bias or The do not prejudice. belief of relate personal the affiant. against to a bias personal bias and a of belief necessary support to and reasons facts hundreds considered in been of a have on part
prejudice statement, which general This subject. cases with dealing of the subject, appears judicial opinion a consensus seems to S., 82: 48 C. Judges, § J. him, disqualify judge, prejudice must be an actual bias of of a or “Bias seriously. Generally sway judgment it his must be character calculated a against itself, cause, against party to the rather than the cause a directed judicial proceedings from the before him. arise other than must part prejudice a not the mere existence of “It actual disqualifies. disqualifying by party Further, apprehension it a bias, partiality, necessarily comprehend every or prejudice of does not a case, prejudice but must be of entertain with reference impair impartiality sway judg- seriously his character calculated to his a integrity. strong enough ment, presumption of his and must be overthrow the (Emphasis supplied.) (pp. 1059.) .” . . * 622, Volmer, In the 12 Kan. City Emporia case early Brewer put succinctly: Justice shown, prima only “. . . not sufficient that It is case —such facie require challenge sustaining juror. case as would It must be enough integ- strong presumption judge’s to overthrow the in favor of the trial *
rity, (p. 627.) presumptions. the clearness his . . .” I has believe what been said the affidavit fully demonstrates that herein is insufficient by when measured legally requirements statute, and this holds true though attorney’s affidavit even is vicariously implanted therein. There is recited in the nothing affidavit, that claim of attorney’s supports personal It against party. merely recites a series of rulings adverse by in-court statements the judge which are claimed belief of bias and prejudice There is against attorney. no mention out-of-court actions statements or the judge would indicate toward antipathy either the party attorneys. court,
As stated in the opinion for K. S. A. 1971 Supp. 20-311d expressly affidavit to requires the party. There is no reference in the statute to bias or prejudice against the attorney, and it noted should be the affiant makes no positive statement the bias or prejudice purportedly shown attorney’s degree of such a that it would operate to establish a personal prejudice against bias the party-affiant. Whether to include bias or an attorney together with personal prejudice against bias or was a matter of legislative choice. so, legislatures e., Some done i. Anno., Minn. St. 542.16, §
401 not, e., others Anno., i. Aiiz. Rev. St. 12-409 The Kansas (A). § legislature elected not to include against bias or personal prejudice an attorney a for ground invoking special procedure pro- vided by 20-311d. The wisdom of choice con- is not our for sideration. In a comprehensive statistical and discussion of survey statutes dealing Review, with the subject in 48 Law Oregon Vol. 311, at commencing page staff at 404 page recognized the matter of legislative choice and recommended that against bias party’s attorney be included in the contemplated Oregon statute: questions together "Two related will be discussed here. The first is whether prejudice alleged ground disqualification be as a should be against party, limited to only case, bias as is or whether it should often against also party’s include attorney. bias The staff recommends that provisions (Emphasis include supplied.) for the latter. . . .”
It is of interest to note that while
Arizona statute
not
does
include attorneys, it has been
so
an attorney
construed
as to permit
to file an affidavit of bias and
on behalf of a client
(Consolidated
Court,
Carpet
v.
13 Ariz.
Corporation
Superior
App.
429,
There is respectable authority for proposition that bias and prejudice against an in the attorney absence bias directed against himself a ground for disqualification a courts, in fact the federal and what appears be numerical courts, majority 3d, of state Anno., adhere to this view. A. R. (23 L. p. Generally cases which 1416.) bias toward an attorney recognized, must shown to of such degree as to adversely 3d, Anno., [b], affect the client. A. L. R. (23 [c], 1423-1426, pp. inch)
The exercise of choice legislative in the matter is demonstrated in Kansas the fact that attorneys were expressly included in disqualification providing judges ground of relation- 20-311). ship (K.S.A. choice, legislature believe, has
Since exercised its I whether not, it would be to add presumptuous desirable bias and prejudice an attorney grounds disqualification, against are and enumerated in K. S. A. 1971 expressed specifically Supp. 20-311d. 20-311d are not intended My scope views to project if he idea that subject should never be bias and refuses to showing personal recuse himself after degree presumed to such a be relied on Such bias to adversely affect the client’s interest. as a should be shown be of ground for disqualification character as to rob the character of or of such genuine antipathy Himes, court (State law. degree impartiality required 160 Fla. So. 2d 23 A. L. R. 3d, Anno., pp. 1416-1426 [6] fit did not see to afford [c].) legislature expe simply *15 dient 20-311d this circumstance. procedure remedy as a
I do not read S. A. S. A. 1971 20-311d as Supp. K. 20-311 K. total in area of indicating legislative preemption specifying grounds and establishing procedures disqualification authority This court has the and the judges. responsibility inherent state, all of this whether securing regardless fair trial for citizens review ground legislatively Appellate method prescribed. such as the instant action are available original proceeding always to secure that end. If for the impelling appear disqualifica- reasons trial, tion of a to afford a fair this court is not without a whether In remedy legislatively (See or not. re Estate prescribed 428, 178 Kan. 291 P. 2d cited Hupp, and cases The therein.) extraordinary remedy by 20-311d is available provided only when under grounds subsection are in specified (b) alleged compliance with the thereof. express provisions
Technically the record
does
reveal “blanket disqualification”
in all future actions in which petitioner’s attorneys might appeal.
However,
instant action
brought
in the nature of a class
action and
prayed
relief
for is the restraint of
defendant from
than
participating
more
cases
eighty
involved. Al-
the decision herein will not
though
operate
future cases filed
attorneys
question,
approval
the affidavit herein
has the
effect of a
practical
“blanket disqualification.” A discussion
involved and
principles
the valid reasons for refusing
recog-
nize “blanket disqualifications”
found in the cases of
Holt,
v.
Ginsberg
The legislature recognized the of the far time was aware fully fication but at the same procedure, in this state administration judicial reaching impact upon worded of a loosely about the enactment might brought its intended beyond scope. far readily subject to application limited procedure appli- result was an efficient expedient, enumerated, grounds alleged the specific cation to one or more of the statute. required by oath in terms expressly I find herein insufficient legally For reasons stated the affidavit under the about a of defendant bring provisions S. A. 1971 20-311d. Supp. of K.