Musser v. Third District Court of Salt Lake County
| Decision Date | 20 June 1944 |
| Docket Number | 6728 |
| Citation | 106 Utah 373,148 P.2d 802 |
| Court | Utah Supreme Court |
| Parties | MUSSER v. THIRD DISTRICT COURT OF SALT LAKE COUNTY et al |
Original proceeding for a writ of mandamus by Joseph White Musser and others against the Third Judicial District Court of Salt Lake County and Hon. Ray Van Cott, Jr., judge of said court, for writ of mandamus directed to defendant judge who refused to disqualify himself from acting in a criminal prosecution.
Alternative writ recalled and petition for permanent writ of mandate denied.
Knox Patterson, Claude T. Barnes, and J. H. McKnight, all of Salt Lake City, for plaintiff.
Brigham E. Roberts, Dist. Atty., of Salt Lake City, and Grover A Giles, Atty. Gen., for defendant.
Plaintiffs applied to this court for a writ of mandamus directed to defendant. We issued an alternative writ to which return is made. From the petition it appears that petitioners are defendants in a criminal action brought by the State of Utah for the crime of conspiracy in violation of Sec. 103-11-1, U. C. A. 1943, now pending in the District Court of Salt Lake County and assigned for trial before respondent judge, the Honorable Ray Van Cott; that petitioners had challenged the right of the respondent judge to preside at said trial and to hear and determine the matters therein involved; that respondent had disallowed such challenge and has refused to disqualify himself because he concluded that he entertained no bias; that respondent is disqualified to sit as trial judge in said criminal action and to hear and determine the matters involved therein for the following reasons: (1) that in said criminal action petitioners, as defendants, are charged with having committed "acts injurious to public morals" and to have conspired together "to advocate, promote, encourage, urge, teach, counsel, advise and practice polygamous or plural marriage," and "the cohabiting of one male person with more than one woman." It is alleged that such prosecution was brought about by the prosecuting officers of the State of Utah as a result of the instigation and encouragement of the officers of the Church of Jesus Christ of Latter Day Saints who are opposed to the petitioners and their religious beliefs and practices; that respondent judge, the Hon. Ray Van Cott, Jr., is a member of such church and as such would, because of his knowledge of the desire and efforts of the officers of said church to suppress said beliefs and practices, be influenced and prejudiced against petitioners so they could not have a fair trial, because said church had condemned the practice of plural marriage; (2) that the aforesaid criminal action had been commenced and initiated as a legal proceeding by the office of the County Attorney of Salt Lake County, and that before his appointment as Judge of the District Court, respondent had been a deputy in the said County Attorney's office and while the said respondent judge was in said office as deputy the investigation of the beliefs and practices of said petitioners was being conducted by the said County Attorney's office; (3) that respondent had sat as presiding trial judge in another criminal action for unlawful cohabitation in which a jury was waived and the cause submitted to the court upon stipulated facts, and respondent judge had held the defendants therein (petitioners here) guilty, and that the evidence which it was then stipulated would be adduced would appear as part of the evidence in the conspiracy case now pending and that the respondent judge, by reason of his formerly considering such evidence in such action for unlawful cohabitation, has concluded in regard thereto and would in that regard and to that extent have prejudged the pending case.
Grounds (1) and (3) are not included withing the statutory disqualification of a judge. Ground (2) set out above we thought might have stated a statutory ground for disqualification and for that reason we issued the alternative writ. Sec. 20-6-1 (3), U. C. A. 1943. We note the grounds seriatum:
(1) Since this ground--the religious beliefs and affiliations of the judge--does not come within those fixed by the statute we must...
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Haslam v. Morrison
...to the sound discretion of the trial judge, he to determine it the same as any other matter which came before him. The implied holding of the Musser case is that actual bias and prejudice on the part of trial judge for or against any litigant will disqualify him, but the existence of bias a......