§601-7  Disqualification of judge;
relationship, pecuniary interest, previous judgment, bias or prejudice. 
(a)  No person shall sit as a judge in any case in which:



(1)  The judge's relative by affinity or consanguinity
within the third degree is counsel, or interested either as a plaintiff or
defendant, or in the issue of which the judge has, either directly or through
such relative, a more than de minimis pecuniary interest; or



(2)  The judge has been of counsel or on an appeal
from any decision or judgment rendered by the judge;



provided that no interests held by mutual or common
funds, the investment or divestment of which are not subject to the direction
of the judge, shall be considered pecuniary interests for purposes of this
section; and after full disclosure on the record, parties may waive
disqualification due to any pecuniary interest.



(b)  Whenever a party to any suit, action, or
proceeding, civil or criminal, makes and files 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 the party or in favor of any opposite party to
the suit, the judge shall be disqualified from proceeding therein.  Every such
affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists and shall be filed before the trial or hearing of the action
or proceeding, 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
affidavit; and no affidavit shall be filed unless accompanied by a certificate
of counsel of record that the affidavit is made in good faith.  Any judge may
disqualify oneself by filing with the clerk of the court of which the judge is
a judge a certificate that the judge deems oneself unable for any reason to
preside with absolute impartiality in the pending suit or action. [L 1931, c
292, §1; RL 1935, §3572; RL 1945, §9573; RL 1955, §213-3; am L Sp 1959 1st, c
5, §1(b); HRS §601-7; am L 1972, c 88, §1(c); gen ch 1985; am L 2004, c 5, §1]



 



Historical Note



 



  Subsection (a) derived from §84 of the Hawaiian Organic Act.



 



Rules of Court



 



  See JC Canon 2.



 



Law Journals and Reviews



 



  State v. Mata:  Disqualification of a Trial Judge.  13 UH L.
Rev. 641.



 



Case Notes



 



  See also note to Organic Act §84.



  Disqualification of judge:  Statutory grounds, whether
exclusive.  17 H. 428.  Disqualification to sit on reserved question.  31 H.
150.  Timeliness of suggestion of disqualification.  41 H. 270; 44 H. 483, 357
P.2d 110; 49 H. 578, 426 P.2d 298.  Disqualification for bias or prejudice in
favor of "opposite party"; who is "opposite party".  49 H.
578, 586, 616-7, 426 P.2d 298.



  Subs. (a):  Judge held not pecuniarily interested in case.  8
H. 391.  Ownership of stock constitutes "a pecuniary interest" in an
action in which corporation is interested.  33 H. 565.  Has been of counsel --
mere employment in law firm is not disqualification.  44 H. 687, 361 P.2d
1043.  Where State a party, whether judge disqualified by reason of having been
a deputy attorney general.  49 H. 252, 413 P.2d 249.  Not applicable where
there is no provision for replacing a justice who would otherwise be
disqualified.  58 H. 25, 564 P.2d 135.



  Subs. (b):  Legal sufficiency of affidavit.  39 H. 308; 41 H.
52; 41 H. 270; 45 H. 44, 361 P.2d 60; 48 H. 247, 397 P.2d 575; 3 H. App. 646,
658 P.2d 898.  Filing of disqualifying affidavit must be timely.  49 H. 578,
586, 616, 426 P.2d 298.  Affidavit required by subsection (b) must state
directly or in substance a personal bias or prejudice on the part of the
judge.  55 H. 80, 515 P.2d 1250.  Reference of an attorney's conduct to a
disciplinary board or a response to an inquiry with respect thereto by
disciplinary counsel, is not grounds for disqualification of a judge.  71 H.
319, 789 P.2d 1122.



  To disqualify judge, party was required to act before the
judge entered ruling on the merits and in conformity with section.  2 H. App.
1, 625 P.2d 378.



  Does not apply to justices of an appellate court.  41 H. 270.



  Voluntary withdrawal from participation.  41 H. 270. 
Voluntary withdrawal of justices from participation.  53 H. 174, 488 P.2d 1406.



  Review by prohibition does not lie where claim of bias and
prejudice is based on facts occurring on trial and ultimately appealable.  45
H. 44, 361 P.2d 60.



  State in criminal case may seek prohibition upon refusal to
disqualify.  48 H. 247, 397 P.2d 575.



  Provision for judge recusing oneself, control by supreme
court over application of this provision.  49 H. 578, 586, 618, 426 P.2d 298.



  Provision requires strict construction to avoid abuses.  55
H. 80, 515 P.2d 1250.



  "Rule of necessity" requires judge to participate
in a decision notwithstanding judge's personal interest if the case cannot be
heard otherwise.  57 H. 348, 555 P.2d 1329.



  Judge presiding over initial probate trial and a subsequent
jury trial on same fact issues does not violate this section.  61 H. 236, 602
P.2d 521.



  Because judge ruled on the motion to disqualify judge,
attorney's failure to file timely motion to disqualify would not be deemed a
waiver of attorney's right to seek a disqualification; judge did not err when
judge denied attorney's disqualification motion.  76 H. 187, 873 P.2d 66.



  Where "evidence" of personal bias offered by
defendant did not involve matters of personal interest to the judge but
concerned primarily matters affecting the judge's exercise of judicial
discretion, motion for disqualification properly denied; also, neither
imposition of jail sentence upon defendant nor scheduling of post-appeal
hearings demonstrated bias on part of judge.  89 H. 371, 974 P.2d 11.



  Where alleged improper ex parte communication with judge by
former officer of plaintiff regarding hotel was unrelated to case, former
officer was not a party to the litigation or a witness, and judge did not know
at time of conversation with former officer whether hotel was owned by
plaintiff or defendant, no personal bias by judge under this section.  92 H.
243, 990 P.2d 713.



  Trial judge did not have to recuse herself from various show
cause hearings because judge was privy to confidential information as a result
of settlement negotiations; however, order dismissing plaintiff's complaint
with prejudice vacated to remedy due process concerns raised by the handling of
ex parte communications mailed from defendant to judge discussing the merits of
the order to show cause hearings.  97 H. 354 (App.), 37 P.3d 603.



  Affidavit filed by counsel did not satisfy the statutory
requirement for the party seeking disqualification to attest to the
disqualifying facts; even assuming plaintiff had complied with the statutory
requirements, counsel's declaration failed to sufficiently state facts showing
bias or prejudice on the part of the judge and was speculative at best.  117 H.
477 (App.), 184 P.3d 792.



  See 35 H. 786.



  Cited:  234 F.2d 221, 223.