U'Ren v. Bagley

• Decision Date: 11 May 1926
• Parties: U'REN v. BAGLEY, JUDGE.
• Court: Oregon Supreme Court

245 P. 1074

118 Or. 77

U'REN v. BAGLEY, JUDGE.

Supreme Court of Oregon

May 11, 1926

In Banc.

Original proceeding by W. S. U'Ren for writ of mandamus against George R. Bagley, Judge of the Circuit Court of Washington County. On demurrer. Demurrer overruled.

Burnett J., dissenting.

W. N. Gatens, W. M. Davis, Richards & Richards, and W. S. U'Ren, all of Portland, for petitioner.

E. B Tongue, Thomas H. Tongue, Jr., W. G. Hare, and George R Bagley, all of Hillsboro, for respondent.

BELT J.

This is an original proceeding in mandamus to compel Hon. George R Bagley, circuit judge of the Nineteenth judicial district, to grant a change of venue or to call in another judge to preside over a suit pending, pursuant to section 45--1, Oregon Laws, and to section 45--2, Oregon Laws, as amended by chapter 143 of General Laws of Oregon for 1925, which provide as follows:

"Section 45--1. Judge Prejudiced not to Try Any Suit or Action; Presiding Judge or Chief Justice to Call in Another Judge or Change Venue. No judge of a circuit court of the state of Oregon shall sit to hear or try any suit, action or proceeding when it shall be established, as hereinafter provided, that such judge is prejudiced against any party or attorney, or the interest of any party or attorney appearing in such cause. In such case the presiding judge shall forthwith transfer the suit or action to another department of the same court, or call in a judge from some other court, or apply to the chief justice of (the) Supreme Court to send a judge to try the case; or, if the convenience of witnesses or the ends of justice will not be interfered with by such course, and the action or suit is of such a character that a change of venue thereof may be ordered, he may send the case for trial to the most convenient court."

"Section 45--2. Party or Attorney May File Affidavit of Prejudice. Any party to or any attorney appearing in any action, suit or proceeding in a circuit court may establish such prejudice by motion supported by affidavit that the judge before whom the action or suit is pending is prejudiced against such party or attorney, so that such party or attorney cannot, or believes that he cannot, have a fair and impartial trial before such judge. And that it is made in good faith and not for the purpose of delay, and shall be filed with such motion at any time prior thereto or within one day after such action, suit or proceeding is at issue upon a question of fact, or such further time as the court may allow, and not otherwise, except that in judicial districts having a population of 100,000 or more, the affidavit and motion for change of judges shall be made at the time and in the manner prescribed in section 45--3, Oregon Laws."

To support motion for change of venue or the calling of another judge, petitioner, who is an attorney at law, made affidavit, in part as follows:

"That the Honorable George R. Bagley, who is the regularly elected and acting judge of said circuit court of the state of Oregon for Washington county, and before whom said suit is pending, is so prejudiced against me that I cannot, and I verily believe I cannot, have a fair and/or impartial trial of said cause before said judge."

The single question involved is the constitutionality of the above act. It is the first time its validity has been squarely before this court for decision, although there are expressions in State ex rel. Johnson v. Circuit Court for Deschutes County, 114 Or. 6, 233 P. 563, 234 P. 262, and State v. Dobson (Or.) 241 P. 383, indicating a variance of opinion relative thereto.

It is conceded in the very able briefs submitted that the language of this statute is absolute and mandatory. No discretion is vested in the judge against whom the affidavit is filed as to his recusation. When an affidavit is timely made and in substantial compliance with the statute, the disqualification of the judge is accomplished so far as proceeding further in that particular cause is concerned. There is no issue of law or fact to determine. The course that the judge must pursue is fixed by statute.

A similar act has thus been construed by the courts of our sister state from whose laws the statute in question was copied. State of Washington ex rel. Lefebvre v. Clifford, 65 Wash. 313, 118 P. 40; State of Washington ex rel. Dunham v. Superior Court for Lewis County, 106 Wash. 507, 180 P. 481, and cases cited from same jurisdiction. As stated in State v. Stilwell, 100 Or. 637, 198 P. 559:

"When a statute is copied from the laws of another state, it is usually assumed that it is taken with the construction put upon it by the courts of the state in which it originated."

Did the Legislature go beyond its constitutional powers in enacting this law and thereby invade the province of a co-ordinate branch of the government? Under our constitutional system of government, the legislative, executive, and judicial branches are required to function exclusively within their respective spheres. The success which our form of government has achieved in the past may be attributed largely to the fact that each co-ordinate branch has recognized the fundamental and salutary principle that there must be no encroachment upon the other. It remains, however, for the judiciary to say when there has been a transgression in this respect. This authority vested in the courts is one which should be exercised with extreme caution and only when there has been a plain and palpable abridgment of the powers of one department by another. To determine with precision the boundary between the respective co-ordinate branches of our government has ever been a difficult thing for the courts to do. The question at bar is in the twilight zone. Hence we must proceed with circumspection when called upon to say that there has been a legislative abridgment of judicial power. Courts are ever reluctant to annul by judicial sentence what has been enacted by the lawmaking power. In fact, when the life of a statute is at stake, it is entitled to the benefit of every reasonable doubt. Cooley's Constitutional Limitations (7th Ed.) 252; State v. Laundy, 103 Or. 443. 204 P. 958, 206 [118 Or. 82] P. 290; Smith et al. v. Cameron et al., 106 Or. 1, 210 P. 716, 27 A. L. R. 510; State v. Jacobson, 80 Or. 648, 157 P. 1108, L. R. A. 1916E, 1180.

We take as a premise the truism that every citizen is entitled to a fair and impartial trial. To secure that sacred and constitutional right, legislation undoubtedly may be enacted. Does it not follow that court procedure may be regulated to the end that justice will be administered? May not the state through its legislative branch of government declare the policy of the law to be that courts shall be free from any question of bias or prejudice? The Legislature in effect has said that it is better, as a matter of public policy and the due administration of justice, that a judge, when challenged for bias or prejudice, should not act in that particular cause, even though he be blessed with all of the virtues any judge ever possessed. Courts, like Cæsar's wife, must be not only virtuous but above suspicion. In Oakley v. Aspinwall, 3 N. Y. 547, it was well said:

"It is the design of the law to maintain the purity and impartiality of the courts, and to insure for their decisions the respect and confidence of the community. Their judgments become precedents which control the determination of subsequent cases; and it is important, in that respect, that their decisions should be free from all bias. After securing wisdom and impartiality in their judgments, it is of great importance that the courts should be free from reproach or the suspicion of unfairness. The party may be interested only that his particular suit should be justly determined; but the state, the community, is concerned not only for that, but that the judiciary shall enjoy an elevated rank in the estimation of mankind."

The law is not so much concerned with the respective rights of judge, litigant, or attorney in any particular cause, as it is, as a matter of public policy, that the courts shall maintain the confidence of the people. 15 R. C. L. 530. As stated in People v. Suffolk Common Pleas, 18 Wend. (N. Y.) 550:

"Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge."

No judge has a vested right to sit in a particular case. Neither has a litigant nor an attorney a vested right to have his case heard by any particular judge. In the consideration of this statute a more important question is involved, viz. the purity, stability, and integrity of courts.

In our opinion, the fallacy of the contention of defendant lies in the assumption that this law enables the attorney or party litigant to establish conclusively by affidavit the bias or prejudice of the judge as a matter of fact, and is therefore an invasion of judicial power. This conclusion finds support in Ex parte N. K. Fairbank Co. (D. C.) 194 F. 978, but such holding is not in keeping with the decided weight of authority, as shown by the cases hereinafter cited. In the N. K. Fairbank Co. case it was held to be a curtailment of the judicial power to deprive a judge of the right to pass on the facts set out in an affidavit of prejudice, but this view is not sustained by the United States Supreme Court in Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481, nor by the state appellate courts. Also see Fisk v. Henarie (C. C.) 32 F. 417, and Short v. Chicago, M. & St. P. Ry. (C. C.) 33 F. 114.

It is the challenge of and not the fact of prejudice that ipso facto disqualifies the judge from acting in a particular cause. Chief Justice Ryan in Bachmann v. City...