In this original mandamus proceeding, the issue is whether a motion to disqualify a judge under ORS 14.260(1), set out infra, should be granted where the moving party acts in good faith and not for purposes of delay in bringing the motion, and the grounds for the motion are not irrational. We conclude that, in the circumstance specified, the motion should have been granted. We conclude that a peremptory writ should issue in this case.
Plaintiff-relator, an attorney representing the plaintiff in a civil action before the Circuit Court for Multnomah County, moved to disqualify the Honorable Lee Johnson from hearing a motion for summary judgment in the action. The motion to disqualify was made under ORS 14.250 and 14.260(1). ORS 14.250 provides, in part:
“No judge of a circuit court shall sit to hear or try any suit, action, matter or proceeding when it is established, as provided in ORS 14.250 to 14.270, that any party or attorney believes that such party or attorney cannot have a fair and impartial trial or hearing before such judge.”
ORS 14.260(1) provides:
“Any party to or any attorney appearing in any cause, matter or proceeding in a circuit court may establish the belief described in ORS. 14.250 by motion supported by affidavit that such party or attorney believes that such party or attorney cannot have a fair and impartial trial or hearing before such judge, and that it is made in good faith and not for the purpose of delay. No specific grounds for the belief need to be alleged. Such motion shall be allowed unless the judge moved against, or the presiding judge in those counties where there is one, challenges the good faith of the affiant and sets forth the basis of such challenge. In the event of such challenge, a hearing shall be held before a disinterested judge. The burden of proof shall be on the challenging judge to establish that the motion was made in bad faith or for the purposes of delay.”
In support of the motion to disqualify, plaintiff-relator submitted the required affidavit, stating in summary fashion that he did not believe that his client could receive a fair and impartial hearing before Judge Johnson. Judge Johnson challenged the plaintiff-relator’s good faith, and a *204 hearing was held before another judge, the defendant in this action. At the hearing, Judge Johnson stated that he was unacquainted with plaintiff-relator’s client, but that he had ruled adversely to the client’s legal position in another case in which plaintiff-relator had served as counsel. In response, plaintiff-relator gave several reasons for his motion to disqualify Judge Johnson. In a written opinion, defendant summarized those reasons as follows:
“1. That [plaintiff-relator] filed a previous motion to disqualify Judge Johnson. There was no challenge to that motion. Subsequently, he has appeared before Judge Johnson on other matters in which he did not move to disqualify Judge Johnson.
“2. That he made a campaign contribution to a[n] opponent of Judge Johnson in a contested judicial election.
“3. That while he was a spectator at a hearing in the courtroom of Judge Johnson, he observed what he perceived to be the frustrations of another lawyer who was then appearing before Judge Johnson.
“4. That Judge Johnson is a conservative wealthy republican while he, [plaintiff-relator], is a liberal and his client in the underlying case is of modest means. That Judge Johnson favors ‘the big guy’ as opposed to the ‘little person.’
“5. That Judge Johnson rules in a[n] autocratic manner and is result oriented — that is, Judge Johnson rules primarily on the basis of how he views the matter should be resolved without due consideration of legal principles.
“6. That Judge Johnson has on a prior unrelated case imposed a sanction against [plaintiff-relator] for a procedural violation.” 1
In his opinion, defendant posed the determinative issue in the following manner: “Will the plaintiff in the underlying action [plaintiff-relator’s client] receive a fair and impartial trial before Judge Johnson?” After discussing plaintiff-relator’s reasons for the motion to disqualify Judge Johnson, defendant denied the motion, because he found “no *205 basis to conclude that a fair and impartial trial of the underlying case cannot be had before Judge Johnson.”
Plaintiff-relator then sought an alternative writ of mandamus from this court, arguing that defendant had applied the wrong legal standard to the motion to disqualify. Plaintiff-relator argued that the proper standard was whether he had a good faith belief that his client could not receive a fair and impartial trial, not whether his client could, in fact, receive such a trial. We issued an alternative writ to address that issue. Because we conclude that, in the absence of evidence of bad faith or purpose of delay, 2 a motion to disqualify must be granted, we now direct that a peremptory writ issue.
To determine the proper legal standard for a motion to disqualify under ORS 14.250 and 14.260(1), we begin with the statutes themselves.
See Teeny v. Haertl Constructors, Inc.,
Next, ORS 14.260(1) prescribes the requirements for establishing such a belief and adds the element of the affiant’s “good faith” to the inquiry. Under ORS 14.260(1), the motion must be supported by an affidavit. The affidavit need not state specific grounds for the moving party’s belief, but need only state that the motion is made “in good faith and not for the purpose of delay.” If the required affidavit is filed, the motion “shall be allowed,” unless the judge challenges the affiant’s good faith, in which case, a hearing “shall be held.” At the hearing, the judge bears the burden of proving “that the motion was made in bad faith or for the purposes of delay.” That is, the challenged judge must affirmatively prove *206 the falsity of the good faith assertion in the affidavit by proving that the motion was made in bad faith or for the purpose of delay. If the challenged judge fails to satisfy this burden of proof, the judge must be disqualified.
Given this interpretation of the disqualification statutes, defendant asked (and answered) the wrong question when he framed the issue as whether “the plaintiff in the underlying action [will] receive a fair and impartial trial before Judge Johnson.” The issue to be resolved at a hearing under ORS 14.260 is: “Was the motion to disqualify made in bad faith or for purposes of delay?” Only if that question is answered in the affirmative may the motion be denied.
However, before this court may proceed to answer the proper question, based on the evidence in the record, we must respond to several arguments by defendant. First, in support of his position, defendant contends that he applied the proper standard because, as this court stated in
State ex rel Ray Wells, Inc. v. Hargreaves,
In Hargreaves, this court faced the argument that the 1987 amendments to the judicial disqualification statutes had rendered the statutes unconstitutional. In holding the statutes constitutional, this court’s majority noted that, although the legislature had deleted a former statutory requirement that the moving party allege “prejudice,” the legislature had “retain[ed] what is key,” namely, “whether a fair and impartial trial may be had before the challenged judge.” Id.
Although that passage from
Hargreaves
may seem to suggest otherwise, this court has never interpreted the disqualification statutes to require a showing of
actual
prejudice. In
U’Ren v. Bagley,
*207 “The legislative policy stated in ORS 14.260 is to relieve a party or attorney from having to proceed before a judge when the party or attorney in good faith ‘believes’ that either cannot have a fair or impartial hearing before that judge. Proof that the belief is correct is not required; it is enough that the attorney or party in good faith believes it.”
Id.
at 539. Indeed, it was this discussion of prejudice in
Oliver
that the court summarized in
Hargreaves
as the “key” on which defendant relied.
Recognizing this, defendant concentrates his argument on the element of “good faith” in ORS 14.260(1), arguing that “good faith” under the disqualification statutes must contain an element of objective reasonableness. According to defendant, if plaintiff-relator’s belief is measured against an objective standard, then defendant was correct in denying the motion to disqualify, because plaintiff-relator had no objectively reasonable basis for his ‘ ‘good faith’ ’ belief that his client could not receive a fair and impartial trial before Judge Johnson.
It is clear from this court’s precedents that the standard of “good faith” in ORS 14.260 has historically involved considerations of reasonableness. In
State ex rel Lovell v. Weiss,
“Since the party or attorney seeking to remove a duly elected judge from the bench for the trial of one or more cases may do so only if he believes in good faith that the judge is prejudiced, it is not an undue hardship to require him, when his good faith is challenged, to show that his belief is based upon a rational ground and not upon mere pique, whimsy, or imagination.
“The burden of proving good faith, in the particular case in which an affidavit is filed, will be satisfied if the affiant testifies that he has received information about the trial judge which, if trae, reasonably could be a basis for a fear of prejudice. The affiant need not prove that the judge is prejudiced, or even prove that the evidence upon which he bases *208 his apprehension is all true. But he must come forward with some evidence, hearsay or otherwise, from which a reasonable person could conclude that anyone possessed of such evidence might reasonably question the trial judge’s impartiality in a matter.”
Id.
at 257-58 (emphases supplied). More recently, in
State ex rel Oliver v. Crookham, supra,
Of course, those former opinions of this court must be read in the context in which they were written. When those cases were decided, ORS 14.260 did not expressly require a hearing, nor fix a burden of proof. Indeed, it was in Lovell that this court first decided that, when the good faith of the affiant was challenged, a hearing should be held and that the moving party should carry the burden of proving good faith. Nearly 20 years later, when Oliver and Bowman were decided, those procedures remained intact. On the heels of Oliver and Bowman, however, the legislature chose to change the procedures under ORS 14.260. Or Laws 1987, ch 338, § 2. Specifically, where the court had placed the burden of proving good faith on the moving, party, the legislature placed the burden of proving “bad faith” on the challenging judge.
This amendment to the disqualification statutes requires us to examine the meaning of the term “bad faith.” In
Mattiza v. Foster,
Like the legislative history of the sanction statute in
Matizza,
the legislative history of the 1987 amendments to the disqualification statutes at issue here does not define the term “bad faith.” In this instance, then, we must determine the most likely legislative intent in using that term.
See Enertrol Power Monitoring Corp. v. State of Oregon,
This court previously has stated that the disqualification statutes “are designed to ensure that all litigants receive fair and impartial trials and to maintain public confidence in the judicial system by ehminating even the appearance of impropriety.”
State ex rel Ray Wells, Inc. v. Hargreaves, supra,
Given that meaning of the term “bad faith,” any “objective reasonableness” requirement to be found in the statute must be very limited. But, even in
Mattiza,
this court did not necessarily abandon the idea of an objective component to the standard involved: “In rare cases, an improper purpose constituting bad faith may be inferred solely from the meritless nature of the claim, defense, or ground for appeal or review.”
Mattiza v. Foster, supra,
This leads us to defendant’s final argument. Relying primarily on State ex rel Bushman v. Vandenburg, supra, defendant contends that, if “good faith” under ORS 14.260(1) is purely subjective, then the disqualification statutes violate Article VII (Amended), section 1, of the Oregon Constitution. 3 As we have indicated, however, there is a rationality requirement in the statutes. With this rationality requirement, the disqualification statutes withstand the constitutional challenge urged by defendant.
In
Circuit Court v. AFSCME,
“Our cases indicate that general institutional inconvenience is not enough to render legislation constitutionally defective. Only an outright hindrance of a court’s ability to adjudicate a case such as occurred in State ex rel Bushman v. Vandenburg * * * or the substantial destruction of the exercise of a power essential to the adjudicatory function * * * will prompt an article VII, section 1 violation.”
Id.
at 551. In
Bushman,
the court had invalidated an earlier version of the disqualification statutes that provided for
*211
disqualification based solely on “an application in writing.” ORS 14.220(1) (1953). The court found the scheme to be unconstitutional, because it essentially permitted a party to exercise a “peremptory challenge” of a judge. The court determined that this scheme “contravene[d] the principle of the separation of powers.”
4
State ex rel Bushman v. Vandenburg, supra,
The rationale
oí Bushman
does not compel a similar result here, because there are pivotal differences between the present statutory scheme and that at issue in
Bushman.
In
Bushman,
because there were no requirements other than a written application, the scheme “invested'litigants and their attorneys with the power to remove duly appointed or elected and qualified judges from the bench in particular cases
at will
—
for good cause, bad cause, or no cause at all.” Id.
at 337 (emphasis supplied). In contrast, the scheme at issue here does restrict, albeit loosely, the rights of litigants and attorneys to disqualify judges. A person seeking to disqualify a judge must swear to a good faith belief that a fair and impartial hearing cannot be had before that judge. Even then, the outcome is not automatic. If the challenged judge proves that the person made the motion in bad faith, the motion will be denied. And, as discussed above, in rare cases, “bad faith” may be proved where the movant’s sincere belief is so irrational that allowing the motion would amount to “an outright hindrance” of the court’s ability to adjudicate the case. As this court stated in
State ex rel Ray Wells, Inc. v. Hargreaves, supra,
Having considered and rejected the last of defendant’s arguments, we are left with the task of applying the disqualification statutes as we have interpreted them to the
*212
facts of this case. In a mandamus proceeding, “our function is to decide whether there was any evidence to substantiate the circuit court’s ruling.”
State ex rel Ware v. Hieber,
That inquiry does not take long. Counsel for defendant judge conceded during oral argument that the judge does not contest plaintiff-relator’s subjective belief that his client cannot receive a fair trial before Judge Johnson. We cannot say that the reasons given for plaintiff-relator’s subjective belief all are devoid of rationality. It follows that “bad faith” under ORS 14.260(1) has not been established. The defendant judge should have granted the motion to disqualify Judge Johnson. A peremptory writ directing that the defendant judge do so shall issue.
Peremptory writ to issue.
Notes
In his brief before this court, plaintiff-relator characterizes the facts under 1 and 2 above not as part of “the basis of Plaintiff-Relator’s belief that Judge Johnson was incapable of being fair and impartial,” but as “prior consistent acts which support an assertion of good faith on the part of Plaintiff-Relator.”
The defendant does not argue that plaintiff-relator was acting for “purposes of delay.” We therefore do not address that issue further.
Article VII (Amended), section 1, provides:
“The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. The judges of the supreme and other courts shall be elected by the legal voters of the state or of the r respective districts for a term of six years, and shall receive such compénsa-te : as may be provided by law, which compensation shall not be diminished c ■ ing the term for which they are elected.”
Defendant acknowledges that the ruling in
Bushman,
was based on Article III, section 1 (separation of powers), rather than on Article VII (Amended), section 1, but argues that the holding in
Bushman
was made applicable to the latter constitutional provision by this court’s statement in
Circuit Court v. AFSCME,