In re Sawyer

• Decision Date: 19 January 1956
• Docket Number: NO. 3044.,3044.
• Parties: IN THE MATTER OF HARRIET BOUSLOG SAWYER, ALSO KNOWN AS HARRIET BOUSLOG, AN ATTORNEY AT LAW.
• Court: Hawaii Supreme Court

41 Haw. 270

IN THE MATTER OF HARRIET BOUSLOG SAWYER, ALSO KNOWN AS HARRIET BOUSLOG, AN ATTORNEY AT LAW.

NO. 3044.

Supreme Court of the Territory of Hawai‘i.

Argued January 16, 1956.

Decided January 19, 1956.

SUGGESTIONS OF DISQUALIFICATION OF JUSTICES STAINBACK AND RICE.

Syllabus by the Court

Section 9573 of the Revised Laws of Hawaii 1945 relative to the disqualification of judges because of bias or prejudice does not apply to justices of an appellate court.

An affidavit to disqualify a judge because of bias or prejudice must be made before there has been any ruling on any litigated or contested matter whatsoever in the case either on motion, demurrer or plea of the party making the affidavit or motion, demurrer or other plea of any other party to the action, otherwise it is not timely made.

An affidavit to disqualify a judge on the grounds of bias and prejudice must state facts and reasons for the belief that personal bias and prejudice exist; it must state more than mere conclusions; the facts and reasons stated must logically support the conclusion of bias and prejudice. The bias or “prejudice” must be personal, that is, antagonism or opposition to the litigant or favoritism for his opponent.

Impersonal prejudice or bias resulting from a judge's background, association or experience is not sufficient to constitute prejudicial bias or even a prejudgment of the matters in controversy, but there must exist an attitude of personal enmity toward the party affiant or in favor of the adverse party to the detriment of the former.

In addition to section 84 of the Organic Act relating to disqualification for reasons of relationship, pecuniary interest or previous judgment, an appellate judge may sua sponte excuse himself from participating in a case where he feels that there are compelling moral reasons or where there exists in his own mind some real doubts as to the impartiality which he as an individual may exert on the matter before him as a judicial officer.

Myer C. Symonds and John T. McTernan for suggestions, for Harriet Bouslog, respondent.

A. William Barlow for Bar Association.

Edward N. Sylva, Attorney General, and Morio Omori, Deputy Attorney General, for Territory.

TOWSE, C. J., STAINBACK AND RICE, JJ.

OPINION OF THE COURT UPON SUGGESTIONS OF DISQUALIFICATION BY STAINBACK, J.

This matter involves a complaint of the Bar Association of Hawaii, under rule 19, filed July 8, 1954, against Harriet Bouslog Sawyer, a member of the bar of this Territory, which involves two charges: (1) That while appearing as counsel of record for certain defendants in a certain case in the United States District Court for the District of Hawaii, and during the trial of said cause, she made a speech at Honokaa, Hawaii, on December 14, 1952, at a public gathering wherein she is alleged to have severely criticized the court and the judge and alleged that unless the trial was stopped certain new crimes would be created by such trial; and (2) Alleged improper conduct in connection with her interview of a juror and her motion for a new trial in connection with the interview with such juror.

Thereafter there were filed the report of the legal ethics committee of the Bar Association of Hawaii, a number of memoranda including two by the Bar Association, one by J. Garner Anthony in behalf of Harriet Bouslog, and an answering memorandum on behalf of the Bar Association by William Barlow, all relating to the legal sufficiency of the charges; an order to show cause was filed July 8, 1955; a motion to dismiss the order to show cause was filed October 19, 1955. The motion to dismiss the order to show cause was heard and overruled, as was a motion for reconsideration, with Mr. Chief Justice Towse dissenting as to those matters relating to the juror's affidavit. A return to order to show cause and a number of motions for continuance were filed.

Thereafter, suggestions of disqualification of Associate Justices Stainback and Rice, and affidavits relative thereto, were filed on January 11, 1956, these suggestions being based upon section 9573 of the Revised Laws of Hawaii 1945.

The first question is whether the provisions of section 9573, Revised Laws of Hawaii 1945, are applicable to a justice of an appellate court. In Whittemore et als. v. Farrington et als., 41 Haw. 52, this court by a majority opinion held that such section is not applicable to a justice of the supreme court and we see no reason for overruling this holding.

The Hawaiian statute, as appearing in section 9573 of the Revised Laws of Hawaii 1945, providing for the disqualification of judges on the grounds of personal bias or prejudice is a duplicate of the Federal Act approved March 3, 1911. (Chap. 231, 61st Cong. Sess. III, p. 1090.)

Section 9573 provides: “Disqualification of judge; bias or prejudice. Whenever a party to any suit, action or proceeding, whether at law, in equity, criminal, or special proceeding, shall make and file an affidavit 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 be disqualified from proceeding therein. Every such affidavit shall state the facts and the reasons for the belief that bias or prejudice exists and shall be filed before the trial or hearing of the action or proceeding, or good cause shall be shown for the failure to file it within such time. No party shall be entitled in any case to file more than one affidavit; and no affidavit shall be filed unless accompanied by a certificate of counsel of record that the affidavit is made in good faith. Any judge may disqualify himself by filing with the clerk of the court of which he is a judge a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action.”

The wording of the Act does not by specific provision include an appellate court and the construction of the federal statute has held that it does not apply to an appellate court.

“The statute authorizing affidavit of personal bias or prejudice of judge does not apply to the Circuit Court of Appeals.” (Millslagle v. Olson, 128 F. [[[2d] 1015.)

In Duke v. Committee on Grievances of the Supreme Court, 82 F. [2d] 890, 895, it is stated: “Appellant some time ago filed in this court an affidavit under the provisions of section 21 of the Judicial Code (28 U. S. C. A. § 25), charging all the judges of this court with personal bias and prejudice. Because we agreed with the Circuit Court of Appeals in the First Circuit that the section does not apply to appellate tribunals, we rejected the affidavit. Kinney v. Plymouth Rock Squab Co., 213 F. 449.”

“The only question considered in this case is whether or not section 21 applies to appellate courts and it is determined in this case that it does not.” (Saunders v. Piggly Wiggly Corporation, 1 F. [2d] 582, 584, citing numerous cases.)

It is elementary that the adoption by the territorial legislature, as in this case, of a statute of another jurisdiction carries with it the judicial interpretation of the statute by that jurisdiction. (Territory v. Ota, 36 Haw. 80;Carter v. Gear, 16 Haw. 242, aff'd 197 U. S. 348.)

“Indeed, it is the well–settled general rule that when a statute is adopted from another state or country the judicial construction already placed on such statute by the highest courts of the jurisdiction from which it is taken is treated as incorporated therein so as to govern its interpretation.” (50 Am. Jur., Statutes, § 458, pp. 471, 472.)

However, assuming that the statute be applicable to justices of an appellate court, the suggestion of disqualification of a judge for bias or prejudice must be made before an appearance on the merits or before the submission of preliminary motions by either party preparatory to the trial or the objection is deemed waived. Such suggestions were not made in this case until after a number of rulings relating both to important matters of substance as well as continuances. The statute specifically provides that such affidavit shall be filed before the trial or hearing of the action or the proceeding. Unless the matters of disqualification are unknown to the party at the time of the proceeding and are newly discovered, there can be no excuse for delaying the filing of the suggestion until after rulings are made in the matter, particularly where such rulings may be considered adverse to the movant.

“We hold that an affidavit of prejudice is timely made if filed and called to the attention of the court before it has made any ruling on any litigated or contested matter whatsoever in the case, either on a motion, demurrer, or plea of the party making the affidavit, or on the motion, demurrer, or plea of any other party to the action, of the hearing of which the party making the affidavit has been given notice, otherwise it is not timely made. We cannot permit a litigant to test the mind of the trial judge like a boy testing the temperature of the water in the pool with his toe, and if found to his liking, decides to take a plunge. The plunge into the pool of litigation with an affidavit disqualifying the trial judge must be made on a belief of prejudice theretofore entertained, and not on any subsequent discovery of such belief of prejudice resulting from an adverse ruling.” (State v. Armijo, 50 P. [2d] 852, 855.)

In Laughlin v. United States, 151 F. (2d) 281, where the affidavit was held back until after the judge had ruled on sundry matters and after he had on appellant's request granted a continuance, it was properly held a waiver of appellant's statutory right to a consideration of his affidavit of prejudice.

Gregory v. Hartley, 113 U. S. 742, where the question was whether a petition for removal from a state court was timely filed, it was held under the wording of the statute that there cannot be a removal after a hearing on a demurrer to a...