THE STATE v. FLEMING
35601
Supreme Court of Georgia
April 8, 1980
Rehearing Denied April 29, 1980
245 Ga. 700
JORDAN, Presiding Justice.
Since we find no evidence in this case, as did the Court of Appeals, to show that the successor judge was not qualified to preside at the hearing as to the indigency of the petitioner, we affirm the holding of the Court of Appeals.
Judgment affirmed. All the Justices concur, except Bowles, J., who concurs in the judgment only.
ARGUED JANUARY 15, 1980 — DECIDED APRIL 8, 1980 — REHEARING DENIED APRIL 29, 1980.
Victoria D. Little, for appellant.
Randall Peek, District Attorney, for appellee.
35601. THE STATE v. FLEMING.
JORDAN, Presiding Justice.
This case presents a question apparently never squarely addressed by Georgia courts before, i.e., whether a trial judge, faced with a mоtion to recuse, may preside over his own evidentiary, recusal hearing.1
Judge H. W. Lott denied a motion to disqualify himself filed on behalf of the State of Georgia by the
1. We agree with the state that Judge Lott should not have presided at his own recusal hearing.2
Other states that have dealt with this problem have reached a variety of results. See, e.g., Amidon v. State, 604 P2d 575 (S.C. Alaska 1979); Cline v. Sawyer, 600 P2d 725 (S.C. Wyo. 1979); State v. Pondexter, 590 P2d 1074 (S.C. Kan. 1979); State v. Aubert, 393 A2d 567 (S.C. N.H. 1978); State v. Smith, 242 NW2d 320 (S.C. Iowa 1976). We note also that Texas has the following statute covering this specific point: “A district judge shall request the Presiding Judge to assign a judge of the Administrative District to hear any motions to recuse such district judge from a case pending in his court.”
The following statute governs the procedure used in federal courts: “Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be
Furthermore, it has been noted that “[s]ection 144 requires that where an affidavit of personal bias or prejudice is filed, the judge must cease to act in the case and proceed to determinе the legal sufficiency of the affidavit. He is not, however, allowed to pass upon the truth of its statements. [Cits.]” Bell v. Chandler, 569 F2d 556 (10th Cir. 1978).
The Fourth Circuit Court of Appeals has held that even absent a legally sufficient affidavit, it is still within the trial judge‘s discretion to refuse to hear the case on the grounds of personal prejudice or bias. Smith v. State of North Carolina, 528 F2d 807 (4th Cir. 1975). See
We hold the federal rule on motions to recuse to be the most acceptable, that is, when a trial judge in a case pending in that court is presented with a motion to recuse accompanied by an affidavit, the judge‘s duty will be limited to passing upon the legal sufficiency of the affidavit, and if, assuming all the facts alleged in the affidavit to be true, recusal would be warranted, then anоther judge must be assigned to hear the motion to recuse. We note also the well-settled rule that it is as much the duty of a judge not to grant the motion to recuse when the motion is legally insufficient as it is to recuse when the motion is meritoriоus; nor does the simple filing of an affidavit automatically disqualify a judge. United States v. Bray, 546 F2d 851, 857 (10th Cir. 1976) and cits.
In the instant case, assuming all the facts as presented in the state‘s affidavit to be true, the state‘s
2. The state also argues that the trial court committed error during a pretrial motion when it dismissed, over objection, the defendant‘s retаined counsel and reinstated appointed counsel who had been inactive in the case for three years to resume representation of the defendant.
Pretermitting the question of whether this action by the trial court adverse to the defendant is appealable by the state, we would suggest that this may be done only upon adequate findings in the record fully supporting such action. See United States v. Laura, 607 F2d 52, 55-56 (3rd Cir. 1979) where it was held that “[t]he reasoning underlying [cited United States Suprеme Court] decisions makes it clear that the sixth amendment generally protects a defendant‘s decision to select a particular attorney to aid him in his efforts to cope with what would otherwise be an incomprehensible and overpowering governmental authority. While the right to select a particular person as counsel is not an absolute right, the arbitrary dismissal of a defendant‘s attorney of choice violates a defendant‘s right to counsel.” (Emphasis supplied.)
Because the Laura court did not have adequate findings by the trial court on which to decide whether the dismissal was arbitrary or not in that case, it remanded for those findings to be made. We find this reasoning persuasive.
In the instant сase, the dismissal of retained counsel was enumerated as one of the actions taken by Judge Lott which indicated that amount of personal bias and
3. As to the other enumerations of error allegedly committed by Judge Lott, we find these to be in the same posture as found in Division 2. Therefore, we will abstain from ruling on these matters pending the outcome of the recusal hearing since these errors may be rendered moot by the corrective actions of a nеw judge, should one be named.
Judgment reversed with direction. All the Justices concur, except Hill, J., who concurs in the judgment only.
ARGUED JANUARY 14, 1980 — DECIDED APRIL 8, 1980.
Vickers Neugent, District Attorney, Robert Sparks, Assistant District Attorney, for appellant.
Millard C. Farmer, M. Dale English, for appellee.
HILL, Justice, concurring.
I concur in the first division of the majority opinion. In a concurring opinion I can express some personal views which would be called guidelines if promulgated by the executive branch of government but which can only be called dicta in a judicial opinion. While the majority feels constrained not to include dicta in anticipation of problems not presented by the case at bar, as the author of this opinion, I am not so constrained.
This concurring opinion is written to emphasize thаt, in my view, the motion and affidavit showing bias or
Such written motion and affidavit should, in my view, satisfy at least two time requirements: It should (1) show that it was filed promptly and without delay, at the first opportunity after the affiant learned of the grounds for disqualification, and (2) it should be filed sufficiently in advance of trial so as to allow time for the designation of another judge to hear and decide the motion, and to secure another judge to preside at trial if the presiding judge is found to be disqualifiеd, so as not to delay the trial. In multi-judge circuits, where the motion and affidavit are personally presented to the judge presiding over the case (not merely filed in the clerk‘s office), presentation at least ten days before trial may suffice, assuming that the affidavit was also filed at the first opportunity, promptly and without delay. In single judge circuits, more lead time may be required. If these requirements are not met, then the affiant should be required to show good сause, in the motion and affidavit and at the hearing, for the failure to file earlier. The federal cases indicate that the requirement of showing good cause for failure to timely file a motion to recuse is rarely, if ever, sаtisfied. A litigant, civil or criminal, knowing of possible grounds for disqualification, cannot delay filing the motion and affidavit in order to see how the judge will rule or will handle the proceeding. Neither an adverse decision nor the sentence imposed by the court is itself evidence of bias or prejudice. Reasons for this rule are self-evident.
Because our decision in this case may cause problems in those circuits where criminal cases are tried immediately following indictment, I should add that, in my view, no trial should be postponed or suspended due to the filing of such a motion and affidavit. At least in my view, the presiding judge may himself or herself, without calling upon another judge, decide that a motion is
From all that appears, the motion to recuse and its supporting affidavit were timely filed in this case and I therefore concur fully in Division 1 of the majority oрinion. I am, however, deeply concerned, as is the district attorney and, I believe, the majority of this court, with the defendant‘s right to be represented by retained counsel of his choosing. Because we cannot decide that issue without a record made before a judge found qualified to do so, I join the judgment of the court.