Hulme v. Woleslagel

• Decision Date: 05 January 1972
• Docket Number: No. 46536,46536
• Parties: Charles HULME, d/b/a Charles Hulme Construction Company, Plaintiff, v. Frederick WOLESLAGEL, Judge, Twentieth Judicial District, Division 1,Defendant.
• Court: Kansas Supreme Court

Page 541

493 P.2d 541

208 Kan. 385

Charles HULME, d/b/a Charles Hulme Construction Company, Plaintiff, v. Frederick WOLESLAGEL, Judge, Twentieth Judicial District Division 1,Defendant.

No. 46536.

Supreme Court of Kansas.

Jan. 5, 1972.

Syllabus by the Court

In an original proceeding in mandamus wherein plaintiff seeks mandatory disqualification of a district judge in an action in district court in which he as a party litigant had filed an affidavit of recusation upon the ground of bias or prejudice, the provisions of K.S.A.1971 Supp. 20-311d et seq. are considered and construed, and it is held: (1) The exercise of a trial court's discretion cannot be controlled by mandamus, but where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked; (2) the enactment in question does not provide mandatory disqualification upon the filing of an affidavit of recusation upon the ground of bias or prejudice but requires a hearing as to the legal sufficiency of the affidavit-not as to the fact of the bias or prejudice alleged; (3) the affidavit must contain facts and reasons which give fair support for the belief that on account of the bias or prejudice of the judge the affiant cannot obtain a fair trial; (4) upon the filing of such an affidavit the administrative judge shall at once transfer the action to another judge for a hearing as to the legal sufficiency of the affidavit; (5) a judge, with or without an affidavit of bias or prejudice being filed or request for change made, may always, on his own motion, recuse himself in a particular case; (6) an affidavit to disqualify a judge for bias or prejudice must be made by the party litigant rather than by his attorney; (7) bias or prejudice on the part of the judge toward an attorney may be ground for the judge's disqualification; (8) the record does not reveal blanket disqualification in the future; (9) when the ruling of a trial court turns on documentary evidence this court can examine the documents and determine their meaning and effect; (10) previous adverse rulings of a trial judge, although numerous and erroneous, where they are subject to review, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him as judge; (11) judicial suggestions or admonition to counsel for improvement are not sufficient to disqualify the judge on the ground of bias or prejudice; (12) the affidavit filed by plaintiff in his own action in district court is considered and held legally sufficient to require disqualification; and (13) the enactment is not unconstitutional as violative of the separation of powers' doctrine. Judgment for plaintiff is entered as more fuly stated in the opinion.

J. Eugene Balloun, of Turner & Balloun, Chartered, Great Bend, argued the cause, and Lee Turner and Mary A. Senner, Great Bend, were with him on the brief for plaintiff.

Edward G. Collister, Jr., Asst. Atty. Gen., argued the cause and Vern Miller, Atty. Gen., was with him on the brief for defendant.

Larry Keenan, Jerry M. Ward, John M. Russell, Robert E. Southern, Hugh D. Mauch, William H. Pringle and Nuss, Pringle, Kaufman & Nuss, M. John Carpenter, Loyd H. Phillips, Brock R. McPherson, and Donald H. Humphreys, Great Bend, Marvin Thompson, Robert L. Earnest, Rex L. Culley, and Woelk & Culley, and Michael S. Holland, Russell, Dennis L. Bieker and Dreiling & Bieker, Hays, Jack N. Stewart and Hampton, Royce, Engleman & Nelson, Salina, on the brief amici curiae.

HARMAN, Commissioner.

This is an original proceeding in mandamus brought by plaintiff requesting that this court order defendant, administrative judge of the Twentieth Judicial District of Kansas, Division One, to disqualify himself pursuant to Section 3, Chapter 198, Laws 1971 (now K.S.A.1971 Supp. 21-311d et seq.).

Certain facts forming the background of this proceeding, which are not in dispute may be gleaned from plaintiff's petition. Briefly stated, plaintiff alleges he files this action individually and as representative of a class of persons, corporate and individual, who are clients of the law firm of Turner & Balloun, Chartered, and have cases pending in the Twentieth Judicial District, in which district there are two divisions; that he is plaintiff in an action brought in the district court of Barton county in the Twentieth Judicial District entitled Charles Hulme, d/b/a Charles Hulme Construction Company, versus Roy W. Stevens and Andy Kindsvater Trucking Co., Inc., defendants, case No. 23,950; that on July 19, 1971, certain members of the Turner firm signed and filed an affidavit pursuant to Section 3, Chapter 198, Laws 1971, for the purpose of disqualifying defendant, on the ground of bias and prejudice, from further participation in or presiding over plaintiff's case, and on September 1, 1971, plaintiff signed and filed his affidavit in the case for the same purpose; on September 1, 1971, difendant ordered a hearing to be held as a result of the filing of the affidavits and on September 9, 1971, over plaintiff's objection, defendant held a districtwide hearing as to all cases in which similar affidavits had been filed either by the Turner law firm or by their clients, at the conclusion of which hearing defendant found the affidavits to be frivolous and without merit and denied the relief sought; defendant further ordered that five copies of the transcript of the September 9, 1971, hearing be made, the cost thereof to be taxed against the Turner firm.

The affidavit signed by the attorneys contained a general allegation of bias and prejudice on the part of defendant and recited as examples certain occurrences in nine prior cases in which he had presided as judge and in which an attorney of the Turner firm had appeared on behalf of one of the litigants; broadly stated, the events described consisted of several rulings made by defendant adverse to the litigants represented by the Turner firm and also, in other cases, remarks and comments by him relative to the conduct and tactics of the particular attorney member of the firm who participated in the case. The affidavit signed by plaintiff, omitting formal parts, reads as follows:

'I, Charles Hulme being of lawful age after first being duly sworn upon my oath allege and state:

'First, that I am a party to the abovecaptioned case and am represented therein by Turner & Balloun, Chartered, attorneys at law;

'Second, that an affidavit has previously been filed herein by said attorneys stating facts and reasons upon which a belief that personal bias and prejudice exists on the part of the Honorable Frederick Woleslagel, Judge, Division I of the Twentieth Judicial District;

'Third, that said affidavit was filed for the purpose of disqualifying said judge from any further participation in the trial of this case;

'Fourth, that I have read said affidavit and the contents thereof have been fully and completely explained to me;

'Fifth, that on the basis of said information and other numerous facts and circumstances explained to me by my said attorneys, I believe that personal bias and prejudice on the part of said judge exists and I am of the opinion the same would make it difficult for us to have a fair and impartial trial before the Honorable Frederick Woleslagel.

'Sixth, that I am filing this affidavit for the purpose of disqualifying said judge from any further participation in the trial of this case.

'Seventh, that by reference I hereby incorporate the contents of said attorneys' affidavit into this affidavit as if fully set forth herein.

'Eighth, that the purpose of this affidavit is to comply with the provisions of Ch. 198 (1971) Kan.Sess.Laws.'

Preliminarily, we note that the exercise of a trial court's discretion cannot be controlled by mandamus, but where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked.

Simply stated, plaintiff's position is that the provisions of the 1971 enactment give him a right as a matter of law to have his case transferred to another division of the court when he timely files an affidavit alleging any of the grounds set out in the statute; that under K.S.A. 60-2102(a) he has no appeal as of right from the order denying a transfer nor does an intermediate appeal lie under K.S.A. 60-2102(b) because the order does not involve a controlling question of law. Defendant's contentions in opposition will be presently stated.

Before reciting and considering the statute in question it may be helpful to an understanding of the contentions of the parties relative to the construction to be placed upon it to survey briefly legislation enacted elsewhere pertaining to disqualification of a trial judge on the ground of bias or prejudice, as judicially construed. Some states have neither constitutional nor statutory provision on the subject and the matter of recusation is left to the good conscience of the individual judge. In a few states the appellate courts have, under their rule-making power, prescribed a procedure. Many, however, now have some type of legislation. Those having statutory procedures for recusation for bias or prejudice may be categorized in three groups, based on the ease with which a change may be obtained, although slight variations exist within each group.

Some states require that the factual issues of prejudice be heard and determined before a judge is to be recused, that is, his actual prejudice must be proved in order to obtain his disqualification. In this group several jurisdictions require that another judge hear and determine the fact of prejudice, while others permit the challenged judge to determine his own state of mind (Kansas, with some exception, generally fell into this latter class prior to the enactment of the legislation under consideration (see Flannery v. Flannery, 203 Kan....