Informal Opinion 97-8
October 20, 1997

The Ethics Advisory Committee has been asked whether a judge is required to enter disqualification when the judge is sued by a party who has a case pending before the judge. The lawsuit is against the judge in the judge's judicial capacity and seeks relief such as a change of venue and a jury trial in the pending case. The committee has also been asked whether the judge must enter disqualification when the party has contacted the judge's family members in an attempt to discover information about the judge for inclusion in the complaint.

Canon 3E(1)(a), Utah Code of Judicial Conduct, requires a judge to enter disqualification when "the judge has a personal bias or prejudice concerning a party." In Informal Opinion 96-3, the committee discussed whether a judge is required to disqualify when an attorney representing one of the parties in a proceeding before the judge had previously represented another client in a suit against the judge. The committee determined that disqualification was not automatically required. In making this determination, the committee cited Rogers v. Wilkins, 267 S.E. 2d 86 (S.C. 1980), in which a party who had a case pending before the judge brought a federal civil rights action against the judge. The party argued that the separate adversarial action "standing alone" required the judge to enter disqualification. The Supreme Court of South Carolina disagreed, determining that an adversarial action against the judge does not automatically require disqualification. The court stated that there must be "independent evidence of bias or prejudice as a result of the Section 1983 action." Id. at 88.

As noted in Wilkins, a lawsuit complaining of a judge's official actions will not automatically require the judge's disqualification. This conclusion is consistent with cases determining that disqualifying facts must have an extrajudicial source. Seee.g.U.S. v. International Business Machines Corp., 475 F.Supp. 1375 (S.D.N.Y. 1979). "As a general rule, bias or prejudice that is caused by occurrences in the context of a court proceeding is not grounds for disqualification. To require recusal, bias or prejudice normally must be rooted in an extrajudicial source. When not flowing from an extrajudicial source, bias or prejudice will not necessitate disqualification unless it is so egregious as to destroy all semblance of fairness." Jeffrey M. Shaman, et al. Judicial Conduct and Ethics, 102 (2d ed. 1995). A lawsuit complaining of a judge's official acts is not considered extrajudicial and disqualification is not automatically required.

This rule is necessary to insure that litigants are not able to judge shop or continually delay actions with well-timed lawsuits against judges. "A party should not be able to engage in 'judge-shopping' by manufacturing bias or prejudice that previously did not exist. . . . That a party . . . files a complaint against a judge will not usually require the judge to be disqualified on account of bias or prejudice." Id. at 104, 105.

Similarly, disqualifying bias is not automatically created by a litigant's actions which are ancillary to a lawsuit against a judge, such as by contacting the judge's family members for the purpose of gaining information to be included in the complaint or that would be useful in effecting service of process. However, disqualification will be necessary if the contact is so egregious or otherwise so upsetting to the judge or the judge's family that it actually results in bias. The judge must evaluate each situation to determine whether the contact has, in fact, resulted in the judge becoming biased against the party. The judge must also consider whether a reasonable person, knowing all of the facts available to the judge (including the fact that a party may not purposefully set out to create bias where none existed before) could question the judge's ability to be impartial.

In conclusion, facts prompting disqualification must stem from an extrajudicial source and therefore a lawsuit filed against a judge, complaining of acts in the judge's judicial capacity, will not ordinarily require the judge's disqualification. Absent actual bias, disqualification is not required when a party contacts members of the judge's family for purposes related to the lawsuit.