Thursday, May 1, 2008

Refusing Recusal

Jou v. Schmidt (ICA April 29, 2008)

Background. Dr. Jou treated Dereas and billed her insurance company, Island Insurance. Island only paid part of the bill. It also asked Dr. Jou for more information before it made anymore payments. Dr. Jou responded in part at an unknown time. Eventually, Dr. Jou sought an administrative hearing before the DCCA, Insurance Division. Dr. Jou claimed that Island owed him interest on the amount it paid as well as the outstanding payment. Island claimed it paid what it fully owed and its obligation is done. The hearings officer ruled in favor of Island. Dr. Jou appealed to the circuit court.

At the circuit court, Dr. Jou's attorney requested that the Judge Sabrina McKenna be disqualified. The attorney argued that Judge McKenna was up for retention before the Judicial Selection Committee, where an Island vice president and two lawyers who often represent Island preside. The motion for disqualification was denied and the administrative decision affirmed.

Appearance of Impropriety not Apparent (nor Presumed). Under Hawai'i law, due process calls for judicial recusal when the circumstances "fairly give rise to an appearance of impropriety and . . . reasonably cast suspicion on [the judge's] impartiality." State v. Brown, 70 Haw. 459,467 n. 3, 776 P.2d 1182, 1188 n. 3 (1989). The test for disqualification is objective and is based on the assessment of the "reasonable impartial onlooker apprised of all the facts." State v. Ross, 89 Hawai'i 371, 380, 974 P.2d 11, 20 (1999). Similarly, the Code of Judicial Conduct requires a judge to avoid the impropriety and the appearance of impropriety in all activities. CJC Canon 2(A). The test under the CJC is also an objective one based on reasonableness.

The ICA noted that Judge McKenna even admitted she was up for retention before the JSC and was then put on notice that Island's attorneys and vice president sat on the JSC. For Judge McKenna (and the ICA), however, this was still not enough to warrant recusal. The ICA turned to the rules governing the JSC. Relying on JSC Rule 5, the ICA held that it must be presumed that a JSC member would disclose to the JSC any matter it has before a judge subject to JSC review and that the conflicted JSC member would remove himself or herself from the JSC proceeding. Thus the burden falls on the JSC member in the JSC proceeding, not the judge in its court proceeding. According to the ICA, even if, as here, the record does not show that the compromised JSC members removed themselves from Judge McKenna's retention proceeding, Dr. Jou failed to overcome the presumption. What the ICA left for another day, however, is how a movant can overcome this presumption.

Disqualification Statutes Construed Strictly. In addition to the constitution, there's HRS § 601-7. "Whenever a party to any suit . . . makes and files an affidavit that the judge . . . has a personal bias or prejudice . . . the judge shall be disqualified from the proceeding therein." HRS § 601-7(b). This affidavit must state the facts and reasons underlying the belief of bias or prejudice. Id. These facts must allow a "sane and reasonable mind" to "fairly infer bias or prejudice." Glover v. Fong, 39 Haw. 308, 314-15 (Terr. 1952). Relying on federal cases interpreting similar statutes, the ICA stated that it is not for the party's counsel, but the actual named party to submit the affidavit. Moreover, assuming it was sufficient for counsel to submit the affidavit, the ICA held that this particular affidavit failed to state facts pertaining to Judge McKenna's upcoming retention proceeding before the JSC. This left nothing more in the affidavit than a "sweeping inference" that Judge McKenna was ipso facto biased or prejudiced by Island's involvement with the JSC.

And we mean Strict! The ICA acknowledged that it was following federal cases in strictly construing statutes calling for a judge's disqualification. How strict? Well, for starters, it takes the language literally. The party must submit the affidavit, not the party's counsel. Furthermore, it appeared that the ICA did not look beyond the four corners of the affidavit even when it points out a few pages later that Judge McKenna herself admits that she was up for retention before the JSC. This is a strict construction of a statute. It reads the statute literally and it does not look to the facts reflected in the record, but is limited to the facts averred in the affidavit. Strict indeed.

Other Issues. The ICA discussed the issues pertaining to notice requirements, if any, under the insurance hearing procedures and whether any interest was owed to Dr. Jou as he claimed. None of these issues had merit to the ICA.

1 comment:

line of flight said...

The statute is strictly construed except when it isn't. My experience is that trial court judges strictly construe the statute unless they don't want to hear the case, then its liberally construed.