Informal Opinion 98-12

June 18, 1998

A judge has asked the Ethics Advisory Committee whether disqualification is necessary in a proceeding in which the judge has heightened security concerns about a particular party and, because of those concerns, brings in extra security measures.

The issue for this Committee is whether a judge exhibits bias or prejudice toward a party when the judge invites extra security personnel or increases security measures based on information that a party is volatile or dangerous. The additional security is required to protect persons attending or participating in the judicial proceeding and to ensure that order is maintained.

Canon 3E(1)(a) requires disqualification when "the judge has a personal bias or prejudice concerning a party." "Bias and prejudice are only improper when they are personal. A feeling of ill-will or, conversely, favoritism toward one of the parties to a suit are what constitute disqualifying bias or prejudice." See Jeffrey Shaman et al., Judicial Conduct and Ethics, 101 (2d ed. 1995). The question, then, is whether adding additional security evidences ill-will toward the person who is perceived to be a security risk. A judge must enter disqualification when the judge feels that the volatile behavior has, in fact, created bias or prejudice. A judge must also enter disqualification if a person could reasonably perceive that the statements or actions of the judge indicate ill-will against a party.

It has been noted that judges are not absolutely prohibited from forming opinions about the persons appearing before them. Forming opinions about a person's demeanor is often necessary to decide a case. Those opinions do not necessarily create an inference of bias or prejudice. The U.S. Supreme Court has discussed bias or prejudice as follows: "Not all unfavorable disposition towards an individual, or his case is properly described [as bias or prejudice]. One would not say for example, that world opinion is biased or prejudiced against Adolph Hitler. The words connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree." John Patrick Liteky, et al. v. U.S., 510 U.S. 540, 550 (1994). Bias or prejudice is therefore exhibited by words or conduct that is undeserved, excessive or results from a source that the judge ought not to possess.

Applying these standards to this situation, the Committee is of the opinion that adding security because of the perceived volatility of an individual does not automatically indicate bias or prejudice toward that individual. Security is a normal concern of courts and judges. Judges must have the discretion to increase security as they deem appropriate, without having to worry about disqualification. Increasing security cannot automatically be construed as undeserved or excessive behavior toward an individual. It is also important to note that if disqualification were required in such a situation, parties could engage in acts calculated to require disqualification. The Code of Judicial Conduct does not reward persons who purposely engage in acts calculated to create bias or prejudice. See Informal Opinion 97-8.

This conclusion is consistent with case law and ethics opinions which have sated that disqualification is not required when a party threatens physical harm against a judge. For instance, in State v. Brown, 825 P.2d 482, 489 (Idaho 1992), it was held that a judge was not required to enter disqualification even though the defendant had made death threats against the judge. See also Tennessee Judicial Ethics Committee, Opinion 93-5 and In re Marriage of Johnson, 576 P.2d 188 (Colo. App. 1977).

This Committee's conclusion is also consistent with the extrajudicial source rule, which we discussed in Informal Opinion 97-8. The extrajudicial source rule states that disqualifying bias or prejudice "normally must be rooted in an extrajudicial source." "Bias or prejudice that is caused by occurrences in the context of a court proceeding is not grounds for disqualification." Id. (quoting Jeffrey M. Shaman, et al. Judicial Conduct and Ethics, 102 (2d ed. 1995)). Security concerns typically arise in the context of a court proceeding and are not considered extrajudicial.

In conclusion, it is the Committee's opinion that a judge is not required to enter disqualification simply because the judge has information that a particular party might be a security risk and the judge orders extra security measures. Such action does not constitute bias or prejudice toward the party. Security concerns are legitimate and judges must be allowed to take reasonable actions to address those concerns.