Opinion 167
(This Opinion discusses a prior version of the Canons of Judicial Conduct; the most comparable current rules are 2-2.11 Recusal, Subdivisions (A)(1).)
Issue:
When a judge has learned information regarding a proceeding by hearing pretrial motions, a preliminary hearing, an ex-parte adult abuse petition, or conferring with a juvenile officer pursuant to Supreme Court Rule 111 and RSMo 211, should the judge be disqualified from hearing a subsequent criminal or civil trial, or a full order of protection or other proceeding involving the same information or parties.
Discussion:
Supreme Court Rule 3D(1)(a) requires recusal where a judge has a personal bias or prejudice. In the opinion of the Commission on Retirement, Removal and Discipline, this rule refers to any bias or prejudice that is developed outside the courtroom.
The process of assessing evidence and reaching rulings requires the development of bias in favor of the position of facts espoused by the prevailing party. The prohibition in Canon 3D(1)(a), is against a personal enmity toward a party or in favor of another party which is the result of an extrajudicial source.
Information received by a judge during the course of the judge’s official duties and any subsequent bias which the information creates does not require a judge’s disqualification. Accordingly, absent any additional facts which might require disqualification under the other proscriptions of Canon 3D, a judge need not be disqualified in subsequent proceedings where the judge has previously learned information regarding the proceeding from hearing a pretrial motion, issuing an ex-parte adult abuse order, or conferring with a juvenile officer pursuant to Supreme Court Rule 111 and RSMo 211.
Information received as a result of a preliminary hearing is treated differently as RSMo Section 478.240(2) prohibits a judge who conducts a preliminary hearing from being assigned to hear the trial of the case. This statutory prohibition may, however, be waived by the defendant. State v. Grant, 841 SW2d 276, 278 (Mo. App. 1992)
(Dated: September 26, 1996)
COMMISSION ON RETIREMENT, REMOVAL AND DISCIPLINE
OPINION 167
Issue:
When a judge has learned information regarding a proceeding by hearing pretrial motions, a preliminary hearing, an ex-parte adult abuse petition, or conferring with a juvenile officer pursuant to Supreme Court Rule 111 and RSMo 211, should the judge be disqualified from hearing a subsequent criminal or civil trial, or a full order of protection or other proceeding involving the same information or parties.
Discussion:
Supreme Court Rule 3D(1)(a) requires recusal where a judge has a personal bias or prejudice. In the opinion of the Commission on Retirement, Removal and Discipline, this rule refers to any bias or prejudice that is developed outside the courtroom.
The process of assessing evidence and reaching rulings requires the development of bias in favor of the position of facts espoused by the prevailing party. The prohibition in Canon 3D(1)(a), is against a personal enmity toward a party or in favor of another party which is the result of an extrajudicial source.
Information received by a judge during the course of the judge’s official duties and any subsequent bias which the information creates does not require a judge’s disqualification. Accordingly, absent any additional facts which might require disqualification under the other proscriptions of Canon 3D, a judge need not be disqualified in subsequent proceedings where the judge has previously learned information regarding the proceeding from hearing a pretrial motion, issuing an ex-parte adult abuse order, or conferring with a juvenile officer pursuant to Supreme Court Rule 111 and RSMo 211.
Information received as a result of a preliminary hearing is treated differently as RSMo Section 478.240(2) prohibits a judge who conducts a preliminary hearing from being assigned to hear the trial of the case. This statutory prohibition may, however, be waived by the defendant. State v. Grant, 841 SW2d 276, 278 (Mo. App. 1992)
(Dated: September 26, 1996)