interested in the cause. It was, however, decided that unless the judge had been properly "recused" on oath of a party, his judgment was effectual, even in face of evidence of grounds for disqualification. Following the Partidas, a sworn statement of "fear and suspicion" by the party was held sufficient ground to recuse.2 27 When, however, such a recusation had been filed, the judge so disqualified had to stand aside, leaving the cause to go before another judge to determine the validity of the recusation, as well as to sit in the cause, as judge ad hoc, in place of the judge recused. The procedure is now regulated by the Code of Practice of Louisiana.28 A judge cannot pass on the plea of his own recusation but must refer it to another judge called in to sit ad hoc,29 or to a lawyer with the qualifications of a judge.30 27Gibson v. Foster, 2 La. Ann. 503 (1847). 28 Art. 338. Causes of Recusation. The causes for which a judge may be recused are: 1. Interest. His being interested in the cause; provided, that in all civil and criminal causes in which the State, the parishes, or political or religious corporations are interested, it shall not be sufficient cause to challenge the judge or justice of the peace, who may have cognizance of the case, (nor the sheriff or the executive officer, or any of the jurors who are called to serve in the cause,) to allege that they are citizens or inhabitants of the State or of the parishes, or members of the said political or religious corporations, or that they pay any State, parish or city tax; 2. Relationship. His being related to one of the parties within the fourth degree; 3. Previous employment. His having been employed or consulted as advocate in the cause; 4. His being the father-in-law, son-in-law, or brother-in-law of one of the parties. 5. His having performed any judicial act in the cause in any other court.— Louisiana Code of Practice, pp. 267, 268 (ed. 1914). 29State ex rel. Segura v. Judge, 37 La. Ann. 253 (1885). 30Where the judge had been recused as having been employed as an advocate in the cause, and the judge declined to admit this plea, or to refer it to another judge ad hoc for trial, the court held that such employment was a separate ground of recusation so that a writ of prohibition issued to be made perpetual. State ex rel. Trimble v. Judge, 38 La. Ann. 247 (1886). In another cause the form of order was-"That the respondent judge do at once withdraw from the case, and call upon a lawyer, having the qualifications of a judge, to hear and determine the question of recusation, and that said respondent judge be prohibited from exercising any jurisdiction over the cause, until after said recusation shall have been finally determined adversely to the plaintiffs in the case."-State ex rel. Nolan v. Judge, 39 La. Ann. 994, 996 (1887). Where the recusation was interposed on the eve of the trial and failed to state grounds specified in the code of procedure, arts. 338 or 340, it was held frivolous and therefore need not be referred to another judge. State v. Chantlain, 42 La. Ann. 718 (1890). When the recused judge appoints a member of the bar, as judge ad hoc and a motion is made to recuse this substitute judge it is held that he may decide the motion, when his decision is subject to appeal. State ex rel. Ribbeck v. Foster, Judge, 112 La. 533 (1904). A natural result of substituting a judge from an adjoining locality is that the parties have to await the coming of the judge into the district where the cause is pending, which he is required to do as early as practicable, or as the requirements of his district will permit. Sec. 4, Act No. 40, p. 39 of 1880. State ex rel. Stewart v. Reid, 115 La. 196 (1905). Instances of such disqualification abound in the Western Courts. The charge comes often from a public utterance, perhaps in a political gathering, where the judge had commented on a local issue, or had reflected on the behavior of some class of people. Such examples show the wisdom of a stricter standard, that debars those on the bench, and even candidates for judicial office, from making public political appeals. The outspoken words of a judge may raise a doubt as to his ability to see both sides. When he comes to meet such questions in actual judgment, his decisions may illustrate the adage of Erasmus, as they show "how easy the coach capsizes on the side to which it leans." Louisiana's new constitution of 1921 empowers the legislature to provide for trial of cases where the regular judge has been recused.31 The difficulty still continues, as in the time of Cujas, how to arrange to get a case disposed of, if no other judge be available. A member of the bar may be so taken, who having been then chosen, becomes an acting judge, with full judicial power quoad that particular matter. Kentucky furnishes an example, of a comprehensive statute covering even the cases of non-residents, or infant defendants.32 The Federal Judicial Code. This revision of existing United States statutes was started in order to strengthen the Circuit Courts, so that the judges might 311. "Except as otherwise provided for in this constitution, the legislature shall provide for the trial of recused cases in the district courts by the selection of licensed attorneys at law, by an interchange of judges, or otherwise; said lawyers sitting for recused judges to have all the qualifications required for district judges, except that of residence in the District."-La. Const. 1921, Art. VII, sec. 38. 322. "When, from any cause, the judge of the circuit court fails to attend, or being in attendance can not properly preside in an action, proceeding, or prosecution pending in such court, or if either party shall file with the clerk of the court his affidavit that the judge will not afford him a fair and impartial trial, or will not impartially decide an application for a change of venue, the parties, by agreement, may elect one of the attorneys of the court to preside on the trial or hear the application, or hold the court for the occasion; and if any of the parties to said action, proceeding or prosecution be or are non-resident defendants, who have not entered their appearance, nor have been summoned, or are infant defendants, the attorney appointed to defend for such non-residents or the guardian ad litem for such infants, may agree with the other parties to such action, proceeding or prosecution, upon a lawyer having all the qualifications of a circuit judge to try such action, proceeding or prosecution." Ky. Stats., sec. 968, as amended Mch. 22, 1902. In contrast to this, the Oklahoma constitution provides in the section for district judges: 16* * *In the event any judge shall be disqualified for any reason from trying any case in his district, the parties to such case may agree upon a judge pro tempore to try the same, and, if such parties cannot agree, at the request of either party a judge pro tempore may be elected by the members of the bar of the district, present at such term. If no election for judge pro tempore shall be had, the Chief Justice of the State shall designate some other District Judge to try such case."-Const. Art. 7, sec. 9. dispose of the increasing volume of appeals, by relieving them from sitting in courts of first instance. The new situation was dealt with in the 61st Congress in 1910 and 1911, which prepared the judicial code. This is the remedy to recuse a judge: "SEC. 21. Whenever a party to any action or proceeding, civil or criminal, 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 proceed no further therein, but another judge shall be designated in the manner prescribed in the section last preceding, or chosen in the manner prescribed in section twenty-three, to hear such matter. Every such affidavit shall state the facts and the reasons for the belief that such bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term of the court, 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 such affidavit; and no such affidavit shall be filed unless accompanied by a certificate of counsel of record that such affidavit and application are made in good faith. The same proceedings shall be had when the presiding judge shall file with the clerk of the court a certificate that he deems himself unable for any reason to preside with absolute impartiality in the pending suit or action." The debates in Congress showed a surprising unanimity in favor of this new remedy.33 Mr. Mann of Illinois referred to such a measure as having been in familiar use in the western states for over thirty years, and as giving satisfaction to the people.34 An impression at first arose that the new section had a wide scope. Ex parte American Steel Barrel Co.,35 was the earliest attempt to invoke this 33 See Cong. Record, 61st Congress, 3d Session, p. 2626. 34This certainly differs from the early practice and usage in New York. In a divorce proceeding in Chancery, when a feigned issue was to be tried at law, an affidavit was filed to oppose such trial by the judge in the first circuit. It set forth that such circuit judge "had expressed strong and decided opinions upon the alleged circumstances which would necessarily form the subject matter of such feigned issue and that it would best promote justice between the parties if such issue were sent to some other court to be tried than the said circuit court." The Vice Chancellor called this affidavit "highly improper." "It undertook to convey an insinuation that the complainant could not have a fair trial before the circuit judge, which was not to be listened to for one moment.' Walgrove v. Walgrove, 3 Edw. Chan. (N. Y.) 227, 228 (1838). 85230 U. S. 35 (1913). remedy, and was unsuccessful.36 In 1914, this means of disqualification was held not to apply to an appellate tribunal.37 A more notable case extending the remedy was Berger v. United States,38 decided January, 1921. This was a criminal proceeding against German and Austrian defendants under the Espionage Act of June 15, 1917. The affidavit filed to recuse the judge, though overruled by him, was eventually sustained so that the conviction was reversed. The affidavit stated that in a previous matter Judge Landis had said inter alia: - "If anybody has said anything worse about the Germans than I have, I would like to know it so I can use it *** One must have a very judicial mind, indeed, not to be prejudiced against the German Americans in this country. Their hearts are reeking with disloyalty."39 The Judge, however, caused the stenographic minutes to be produced from which he claimed that his animadversions referred to the particular offenders then being sentenced, and not generally to German Americans like Berger and his associates. The Supreme Court by Mr. Justice McKenna gave this new section its full scope. His conclusions are: "That an affidavit upon information and belief satisfies the section and that upon its filing, if it show the objectionable inclination or disposition of the judge, which we have In pending bankruptcy proceedings against the Iron Clad Mfg. Co., the petitioning creditors had applied to have that receivership extended over the assets of the American Steel Barrel Co. as both corporations had the same president. The judge held that such a claim should be asserted in a plenary suit. In re Iron Clad Mfg. Co., 194 Fed. 906, decided Mar. 15, 1912. On Mar. 29, before any order had been entered on this decision, and less than ten days before the April term, a petitioning creditor filed a disqualifying affidavit that charged the judge with prejudice either against the creditors, or in favor of the opposite party, and asked for another judge. The District Judge withdrew, and another was substituted. In February, 1913, an application for mandamus was made to vacate this order and to require the district judge to resume jurisdiction. In holding that mandamus was not the proper remedy, Mr. Justice Lurton made clearer the purpose of this new provision:-"The basis of the disqualification is that 'personal bias or prejudice' exists, by reason of which the judge is unable to impartially exercise his functions in the particular case. It is a provision obviously not applicable save in those rare instances in which the affiant is able to state facts which tend to show not merely adverse rulings already made, which may be right or wrong, but facts and reasons which tend to show a personal bias or prejudice. It was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, for such rulings are reviewable otherwise, but to prevent his future action in the pending cause. Neither was it intended to paralyze the action of a judge who has heard the case, or a question in it, by the interposition of a motion to disqualify him between a hearing and a determination of the matter heard."-Supra, n. 35, at pp. 43, 44. "Kinney v. Plymouth Rock Squab. Co., 213 Fed. 449 (1914). 38255 U. S. 22 (1921). 39Idem, at p. 28. said is an essential condition, it is his duty to 'proceed no "Our interpretation of Section 2 1 has therefore no deterring A final question is whether, and in what circumstances, the filing of an affidavit to disqualify a judge may be treated as a contempt of court. If we look to the civil law, such punishments for contempt seem there unknown. This was proved before the Privy Council, on an appeal from the Supreme Court of British Guiana, but the judgment passed on another point.41 Obviously a step in procedure authorized by statute cannot be treated as a contempt, as that would deny the remedy. A lawyer may, in a respectful manner, aver that the judge is prejudiced against his side, and unless this be in reckless disregard of truth, or with a purpose to reflect on the honor and integrity of the court, it should not be held a contempt. Such affidavit to disqualify a judge, filed in the Court of Nebraska, 42 which had no express statute for recusation; and in Alaska to which the Judicial Code does not extend; and even when it had not been filed in time," were not held to be contempts. An affidavit, however, evidently scandalous and malicious toward the court, was punished by a term in prison.45 40 Idem, at p. 35. McDermott v. Judges, L. R. 2 P. C. (Eng.) 341 (1868). 42LeHane v. State, 48 Neb. 105 (1896). Tjosevig v. United States, 255 Fed. 5 (1919). "Adams v. Gardner, Judge, 176 Ky. 252 (1917). 45 Fleming v. United States, 279 Fed. 613 (1922). |