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1972 Utah L. Rev. 448 (1972)
Disqualification of Judges for Bias or Prejudice--A New Approach

handle is hein.journals/utahlr1972 and id is 456 raw text is: Disqualification of Judges for Bias or Prejudice - A New Approach The English common law test for disqualification of judges was clear and simple: a judge was disqualified only for direct pecuniary interest.' This basic test, an outgrowth of the principle that a man may not be a judge in his own case, was expanded in dictum in 1865 to include cases where there is a real likelihood that the judge would from kindred or any other cause, have a bias .. . .' Under this new doctrine, which was not widely applied until the twentieth century,' a substantial interest, even though not pecuniary, was sufficient for disqualification.' The common law of disqualification in its expanded form was not readily accepted in the United States.5 American courts initially refused to acknowledge a general right of disqualification for judicial prejudice,6 although specific grounds such as pecuniary interest or relationship to a party were recognized and codified in many states.' At the state level, some jurisdictions expanded this somewhat limited right of disqualification to empower litigants to disqualify biased judges in cases not covered by prior law.8 At the federal level, Congress enacted section 21 of the Judicial Code of 1911, which enabled litigants in United States district courts to dis- qualify judges upon a showing of personal bias or prejudice either against the moving party or in favor of the opposition? Situations raising the possibility of judicial bias or prejudice typically involve a judge's: (1) personal feeling toward one of the parties, (2) apparent bias or prejudice usually based on some prior connection with the case or with one of the parties, or (3) prejudgment of an issue. Since the 'Frank, Disqualification of Judges, 56 YALE L.J. 605, 609 (1947). 2 The Queen v. Rand, L.R. 1 Q.B. 230, 233 (1865) (Blackburn, J.). 'See, e.g., Cottle v. Cottle, [1939] 2 All E.R. 535, 541 (P. & D. & Adm.): The test which we have to apply is whether or not a reasonable man, in all the circumstances, might suppose that there was an improper interference with the course of justice. Later English cases apparently adopted this pronouncement as the rule. See Note, Disqualification of Judges for Bias in the Federal Courts, 79 HARV. L. REV. 1435 (1966) [hereinafter cited as Note, Disqualification of Judges]. ' Note, Disqualification of Judges, supra note 3, at 1435. 'See Fulton v. Longshore, 156 Ala. 611, 46 So. 989 (1908) ; Jones v. State, 61 Ark. 88, 32 S.W. 81 (1895); In re Camerson, 126 Tenn. 641, 151 S.W. 64 (1912). 'See Note, Disqualification of a Judge on the Ground of Bias, 41 HAav. L. REv. 78, 79 (1927). 'See, e.g., ALA. CODE tit. 13, § 6 (1958); COLO. REV. STAT. ANN. § 37-1-24 (1963); N.Y. JUDICIARY LAW § 14 (McKinney 1968). See Note, Disqualification of Judges, supra note 3, at 1436. '28 U.S.C. § 25 (1940) (originally enacted as Act of March 3, 1911, ch. 231, § 21, 36 Stat. 1090), as amended 28 U.S.C. § 144 (1970) : Whenever a party to any action or proceeding... shall make and file an affi- davit that the judge before whom the action or proceeding is to be tried or heard has a personal bias or prejudice either against him or in favor of any opposite party to the suit, such judge shall proceed no further therein, but an- other judge shall be designated in the manner prescribed.... Every such affi- davit shall state the facts and reasons for the belief that such bias or prejudice exists.